Full opinion text
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BENNETT, District Judge. TABLE OF CONTENTS I. PROCEDURAL BACKGROUND.....................................................1423 A The Complaint..................................................................1424 1. Lack Of A Federal Question.................................................1424 2. Construction Of A Plausible Federal Claim ...................................1425 a. A Title VII Claim? .....................................................1426 b. A Claim Under 42 U.S.C. § 1981?........................................1426 B. The Motion For Summary Judgment.............................................1427 II. STANDARDS FOR SUMMARY JUDGMENT........................................1429 III. FINDINGS OF FACT...............................................................1431 A. Undisputed Facts........................................................;......1431 B. Disputed Facts..................................................................1431 IV. LEGAL ANALYSIS.................................................................1432 A The § 1981 Claim Of Race Discrimination........................................1432 1. Elements Of A § 1981 Claim ................................................1432 2. The Analytical Framework For Thomas’s § 1981 Claims 14.33 3. The Prima Facie Case ............................... 1434 k. Legitimate, Non-discriminatory Reason And Pretext.... 1435 5. Thomas’s Discrimination Claims Under § 1981 ........ 1435 B. Claims Under Iowa Code Ch. 216......................... I486 C. Breach Of Covenant Of Good Faith........................ 1437 D. Intentional Infliction Of Emotional Distress ............... 1438 l. Tort Claims And Iowa Code Ch. 216.................. 1438 2. Elements Of The Tort................................ 1439 3. The Outrageousness Of Defendant’s Conduct............ 1439 E. The Defamation Claim................................... 1441 1. Defamation And Defamation “Per Se”................. 1441 2. Qualified Privilege................................... 144% 3. Defendants’ Grounds For Summary Judgment......... 1444 V. CONCLUSION...............•............ 1445 Defendants, a substance abuse treatment and rehabilitation center and some of its managerial personnel and the center’s corporate parent, have moved for summary judgment on a former employee’s claims of constructive discharge and disparate treatment race discrimination and pendant state law claims of race discrimination, breach of covenant of good faith and fair dealing, intentional infliction of emotional distress, and defamation. The former employee’s claims arise out of the defendants’ alleged responses to accusations by patients that the former employee had been under the influence of cocaine while on the job. Those responses included initial demands that the former employee submit to a urinalysis, which were later withdrawn, and allegedly pressuring the former employee to take a different job with the rehabilitation center. The corporate parent of the rehabilitation center has moved for summary judgment on the ground that it was not an employer of the plaintiff. The other defendants have moved for summary judgment on the grounds that the employee cannot make any showing of race discrimination, that Iowa has never recognized a covenant of good faith and fair dealing in employment situations, that the employee has not alleged any conduct on the part of defendants that is sufficiently outrageous to support a claim of intentional infliction of emotional distress, and that defendants have good defenses of truth and qualified privilege to the employee’s defamation claim on which there is no genuine issue of material fact. I. PROCEDURAL BACKGROUND Plaintiff Frederick Thomas, who is Afro-American, filed his complaint in this matter on May 20, 1993, alleging constructive discharge and disparate treatment race discrimination and various state-law statutory and tort claims. Defendants are St. Luke’s Health Systems, Inc., St. Luke’s Gordon Recovery Center a/k/a The Gordon Center (the Gordon Center or the Center), which is a substance abuse treatment and rehabilitation center, Ann Jons, the former manager of adult in-patient programs at the Center, Craig Mansfield, a therapist at the Center, and Steve Middleton, the director of adult services at the Center. Thomas’s allegations, which are discussed in more detail below, included constructive discharge and disparate treatment race discrimination, race discrimination in violation of the Iowa Civil Rights Act, Iowa Code Ch. 601A (now Iowa Code Ch. 216), breach of covenant of good faith and fair dealing, intentional infliction of emotional distress, and defamation. Thomas asserts that the actions of the defendants resulted in his constructive discharge from his employment as a rehabilitation technician with the Center on July 2, 1992. On February 4, 1992, Thomas filed a complaint with the Iowa Civil Rights Commission alleging unlawful employment discrimination against the defendants. Thomas’s charge was referred to the Equal Employment Opportunity Commission, although nowhere in the record is it clear what, if any, action the EEOC took on the complaint. Thomas sought and received a “right to sue” letter from the Iowa Civil Rights Commission. This lawsuit followed. Defendants answered Thomas’s complaint on June 10, 1993, asserting denials of factual allegations, but no affirmative defenses. In the parties’ scheduling report of August 26, 1993, the parties anticipated filing amendments and adding parties, and the scheduling order established a deadline of January 1, 1994, for those pleadings. That deadline was later extended to February 1, 1994, but no amendments or motions to amend have ever been filed by either party. However, the original deadline of April 1, 1994, for the fifing of dispositive motions was twice extended, first to June 1, 1994, then to accommodate defendants’ present motion for summary judgment filed on October 21, 1994. Trial has been set in this matter for December 5, 1994, since entry of a scheduling order on July 14, 1994. However, in their eleventh hour motion for summary judgment, defendants have moved for judgment in their favor on all of Thomas’s claims. Unfortunately, there is precious little time to resolve the important issues raised by the summary judgment motion in the very short period of time between the fifing of the motion for summary judgment and trial. This is an excellent example of the conundrum created by allowing parties to move for summary judgment well past the initial deadline for doing so and on the eve of trial. Counsel for both parties have invested some effort in advancing and resisting summary judgment. This has necessarily consumed considerable time, effort, energy, and attorney fees. In similar circumstances, this court recently remarked: In [one] sense, it would be unfair to the parties not to rule on the motion or to artfully dodge it because of the time crunch. Additionally, meritorious summary judgment motions advance important judicial resource concerns by eliminating trials when they are unnecessary. On the other hand, hurriedly addressing last minute summary judgment motions rob the court of the time necessary to carefully evaluate, analyze and cogitate' — sometimes necessary even when difficult issues are ... presented. Holmes v. Marriott Corp., 831 F.Supp. 691, 696 (S.D.Iowa 1993). Neither party has requested a hearing, and in view of the imminent trial date, the court finds that the matter is fully submitted and is prepared to enter its disposition of the motion. The court has done the best it could to resolve the issues raised in defendants’ motion for summary judgment given the crushing time constraints. A. The Complaint The complaint in this matter is not a model of artful pleading. The only numbered counts state causes of action under Iowa statutory or common law, but no federal cause of action upon which to base federal jurisdiction. The complaint begins with identification of the parties, a jurisdictional statement, and “substantive allegations,” found in paragraphs 9 through 17, with a jury demand in paragraph 18, and a prayer for relief including injunctions, payment of medical bills, emotional damages, attorney fees, punitive damages, liquidated damages, front and back pay, and such other relief as the court deems appropriate. The “substantive allegations” suggest claims of constructive discharge and disparate treatment on the basis of race. In the numbered counts of the complaint, Thomas asserts four causes of action under state law. First, Count I alleges discrimination, apparently on the basis of race, in violation of the Iowa Civil Rights Act, Iowa Code Ch. 601A (1991) (now Iowa Code Ch. 216 (1993)), based on the general allegations with which Thomas’s complaint begins. Count II alleges breach of covenant of good faith, again based on the general allegations with which the complaint begins. Count III alleges common-law intentional infliction of “stress,” and Count IV alleges common-law defamation, both on the basis of the “substantive allegations.” 1. Lack Of A Federal Question A federal court, as a court of limited jurisdiction, has a duty to assure itself that it has subject matter jurisdiction in each case. Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir.1987). Nowhere does the complaint in this matter assert a cause of action under a federal statute, the United States Constitution, or its amendments. Failure to plead federal jurisdiction is fatal, see, e.g., Dep’t of Rec. & Sports of Puerto Rico v. World Boxing Ass’n, 942 F.2d 84, 90 (1st Cir.1991) (instructing district court to dismiss complaint for want of jurisdiction for failure to plead subject matter jurisdiction in the complaint); Fed.R.Civ.P. 8(a)(1) (requiring a “short and plaint statement of the grounds upon which the court’s jurisdiction depends”), and plaintiffs pleading here is at best problematical. In the jurisdictional statement, Thomas invokes federal court jurisdiction under “Title 28 USC § 343 and Title 42 USC § 1981,” and asserts that the amount in controversy exceeds $50,000.00. There is no § 343 in Title 28 of the United States Code! The court believes that when Thomas identified 28 U.S.C. § 343 in his jurisdictional statement, he intended to identify 28 U.S.C. § 1343. That jurisdictional statute is inapposite, however, because it confers jurisdiction only for causes of action not present here, including conspiracy described in 42 U.S.C. § 1985, deprivation of rights under color of law, and protection of civil rights, including the right to vote. Claims under 42 U.S.C. § 1981 require invocation of federal question jurisdiction under 28 U.S.C. § 1331. See, e.g., Cabell v. Chavez-Salido, 454 U.S. 432, 434 n. 4, 102 S.Ct. 735, 737, 70 L.Ed.2d 677 (1982) (district court correctly concluded plaintiffs stated a claim under 42 U.S.C. § 1981, with jurisdiction in the federal district court under 28 U.S.C. § 1331); Envirotech Sanitary Systems, Inc. v. Shoener, 745 F.Supp. 271, 273 (M.D.Pa.1990) (“the statute only fulfills a procedural or remedial role. Therefore, a party seeking to assert a § [1981] claim in a federal court must point to a separate jurisdiction-conferring statute.”). By its terms, 42 U.S.C. § 1981 provides for a cause of action for deprivation of “the full and equal benefit of the laws and proceedings for the security of persons and properties.” 42 U.S.C. § 1981(a). It does not, by itself, confer federal jurisdiction. Thomas has therefore failed to meet his burden to plead federal question jurisdiction. Fed.R.Civ.P. 8(a). Nonetheless, the parties have proceeded throughout this case on the assumption that a federal question case had been presented for race discrimination. The parties have argued that case as though it were one for violation of the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. However, “the eases are legion holding that a party may not waive a defect in subject-matter jurisdiction or invoke federal jurisdiction simply by consent.” Pennsylvania v. Union Gas Co., 491 U.S. 1, 26, 109 S.Ct. 2273, 2288, 105 L.Ed.2d 1 (1989) (Stevens, J., concurring) (citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377, n. 21, 98 S.Ct. 2396, 2404 n. 21, 57 L.Ed.2d 274 (1978); Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556-557, 42 L.Ed.2d 532 (1975); California v. LaRue, 409 U.S. 109, 112, n. 3, 93 S.Ct. 390, 394 n. 3, 34 L.Ed.2d 342 (1972); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, and n. 17, 71 S.Ct. 534, 541-542 & n. 17, 95 L.Ed. 702 (1951); Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934); Jackson v. Ashton, 8 Pet. 148, 149 [33 U.S. 148] 8 L.Ed. 898 (1834)); Pacific Nat’l Ins. Co. v. Transport Ins. Co., 341 F.2d 514, 516 (8th Cir.), cert. denied, 381 U.S. 912, 85 S.Ct. 1536, 14 L.Ed.2d 434 (1965) (“The parties, however, may not confer subject matter jurisdiction upon the federal courts by stipulation, and lack of subject matter jurisdiction cannot be waived by the parties or ignored by the court.”); Laurrence County v. South Dakota, 668 F.2d 27, 29 (8th Cir.1982) (“[F]ederal courts operate within jurisdictional constraints and ... parties by their consent cannot confer subject matter juris- ■ diction upon the federal courts.”). The federal courts have a duty to examine the substantiality of the federal claim throughout the litigation, and must dismiss all claims if the federal claim proves patently meritless even after the trial begins. Pioneer Hi-Bred Int’l. v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1242 (8th Cir.1994); Sanders, 823 F.2d at 216. The court therefore concludes that this matter must be dismissed for want of a federal question. Alternatively, the court reaches the merits of defendants’ motion for summary judgment and also concludes that Thomas’s complaint should be dismissed. 2. Construction Of A Plausible Federal Claim The court reaches the merits of the motion for summary judgment, because the Eighth Circuit Court of Appeals has very recently cautioned that “subject matter jurisdiction should not be used to dismiss a case containing even a remotely plausible federal claim if the parties and the courts have already made [a] vast expenditure of resources.” Id. Thus, in the interest of judicial economy and in light of the investment of resources of the parties, the court will, in the alternative, consider whether Thomas’s complaint can be construed as an inartful attempt to assert a plausible federal claim under Title VII, the theory on which the parties have assumed his discrimination claims were based, or a claim under 42 U.S.C. § 1981. Because the parties have proceeded on the assumption that a federal question was present, and, as will be explained more fully below, the analyses of claims under 42 U.S.C. § 1981 and Title VII are similar, no party will now be prejudiced by the court’s construction of a plausible federal claim from the pleadings. a. A Title VII Claim? Title VII prohibits discrimination in employment, inter alia, on the basis of race. 42 U.S.C. § 2000e-2(a). However, Title VII establishes an administrative procedure which a complaining employee must follow before filing a lawsuit in federal court. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994). Exhaustion of administrative remedies is central to Title VII’s statutory scheme because it provides the EEOC the first opportunity to investigate discriminatory practices and enables it to perform its roles of obtaining voluntary compliance and promoting conciliatory efforts. Patterson v. McLean Credit Union, 491 U.S. 164, 180-81, 109 S.Ct. 2363, 2374-2375, 105 L.Ed.2d 132 (1989); Little Rock Mun. Water Works, 21 F.3d at 222. Title VII also requires that the EEOC allow for initial consideration of discrimination claims in state proceedings by requiring that the EEOC not process a charge of discrimination until the state remedy has been invoked and 60 days have passed, or until state proceedings have terminated. 42 U.S.C. § 2000e-5(b); Swenson v. Management Recruiters Int’l, Inc., 858 F.2d 1304, 1307 (8th Cir.1988). To exhaust administrative remedies an individual must: (1) timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge and (2) receive notice of the right to sue. 42 U.S.C. § 2000e-5(b), (c), (e). Once an individual receives notice of the right to sue, [he or] she has 90 days in which to file suit. 42 U.S.C. § 2000e-5(f)(l). Little Rock Mun. Water Works, 21 F.3d at 222. In Little Rock Mun. Water Works, the court found that the plaintiff had failed to file her lawsuit within 90 days of receiving notice of the right to sue, and therefore her federal lawsuit was barred by statute. Id. In the present case, Thomas has alleged only that the Iowa Civil Rights Commission referred his complaint to the EEOC. He alleges that he received a right-to-sue notice from the Iowa Civil Rights Commission, but not such a notice from the EEOC. Thomas has therefore failed to plead the procedural prerequisites for a federal lawsuit under Title VII. The court cannot construe a plausible claim under Title VII to establish federal question jurisdiction over this lawsuit. b. A Claim Under 42 U.S.C. § 1981? The “substantive allegations” and citation of 42 U.S.C. § 1981 in the jurisdictional statement could be construed as a woefully inartful attempt to state a federal cause of action upon which to base subject matter in this case. The court concludes that a federal cause of action under 42 U.S.C. § 1981 is a more plausible claim than one under Title VII in light of the procedural and pleading flaws identified in the preceding section that block Thomas’s assertion of a claim under Title VII. The court must therefore consider whether Thomas may pursue his claim of constructive discharge and disparate treatment in employment on the basis of race under 42 U.S.C. § 1981. In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the United States Supreme Court concluded that § 1981 cannot be the basis for a claim for racial discrimination in the employment relationship. Patterson, 491 U.S. at 182, 109 S.Ct. at 2875. The Court held that § 1981 is limited to claims involving “a refusal to enter into an employment contract on the basis of race.” Id. Thus, after Patterson, § 1981 “extendfed] only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” Id. at 176, 109 S.Ct. at 2372; Williams ¶. KETV Television, Inc., 26 F.3d 1439, 1444 (8th Cir.1994). The Eighth Circuit Court of Appeals followed Patterson by holding that racially-discriminatory-discharge claims may not be brought under § 1981. Taggart v. Jefferson County Child Support Enforcement Unit, 935 F.2d 947, 948 (8th Cir.1991) (en banc); see also Valdez v. Mercy Hosp., 961 F.2d 1401, 1403-04 (8th Cir.1992) (citing Taggart); Hicks v. Brown Group, Inc., 952 F.2d 991, 992 (8th Cir.1991) (citing Taggart), rev’d on other grounds and remanded, — U.S.-, 112 S.Ct. 1255, 117 L.Ed.2d 485 (1992). However, effective November 21, 1991, that portion of Patterson relied on in Taggart was statutorily overruled by the Civil Rights Act of 1991, by redefining the terms “make and enforce contracts” to include termination of contracts. 42 U.S.C. § 1981(b); Hicks v. Brown Group, Inc., 982 F.2d 295, 296 (8th Cir.1992) (en banc), cert. denied, — U.S.-, 114 S.Ct. 1642, 128 L.Ed.2d 363 (U.S.1994); Valdez, 961 F.2d at 1404; Fray v. Omaha World Herald Co., 960 F.2d 1370, 1373 (8th Cir. 1992). The 1991 amendment to 42 U.S.C. § 1981 therefore applies to discharges occurring after November 21, 1991. Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 381 (8th Cir.1994) (amendment will not be applied retroactively, citing Fray, 960 F.2d at 1378); Williams, 26 F.3d at 1444; Fray, 960 F.2d at 1378 (amendment does not apply retroactively). Thomas’s cause of action for constructive discharge and disparate treatment during the course of his employment on the basis of race is cognizable under § 1981, because he alleges only acts and discharge occurring after November 21, 1991. Therefore, as an alternative to its holding that this case should be dismissed for want of a federal question, the court will reach the merits of Thomas’s claims and defendants’ motion for summary judgment. B. The Motion For Summary Judgment Defendants have moved for summary judgment in their favor on all of Thomas’s claims. Defendant St. Luke’s Health Systems, Inc., has moved for summary judgment in its favor on the ground that it is a separate corporation from its subsidiary, the Center, and therefore never was Thomas’s employer. Thomas has not challenged this ground for summary judgment. The remaining defendants have moved for summary judgment on Thomas’s state and purported federal discrimination claims on the ground that Thomas has made no showing of intentional discrimination to sustain the claims, and no showing of adverse treatment at all. They argue that rather than creating an intolerable atmosphere resulting in constructive discharge, they in fact offered Thomas a promotion, and did not “pressure” him to take that or any other less attractive position. They also argue that there were no adverse consequences, to Thomas as the result of allegations by patients that Thomas had been under the influence of cocaine while on the job at the Center. They argue that far from being terminated, as was a white person who relapsed into alcoholism, Thomas was allowed to keep his job without any further consequences. Thomas argues that he has presented a prima facie case of discrimination and that there is a genuine issue of material fact as to whether he was subjected to an intolerable atmosphere and disparate treatment. Defendants have moved for summary judgment in their favor on Thomas’s claim of breach of covenant of good faith on the ground that the Iowa Supreme Court has specifically rejected such a cause of action in the employment context, citing Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 457 (Iowa 1989). Thomas does not appear to challenge this ground for summary judgment. Defendants have also moved for summary judgment in their favor on Thomas’s claim of intentional infliction of emotional distress on the ground that none of the conduct alleged is sufficiently outrageous to sustain the tort claim. Thomas appears to argue that there is a genuine issue of material fact as to whether or not the conduct he has alleged, whether discriminatory or not, was so outrageous as to sustain this cause of action. Finally, defendants have moved for summary judgment in their favor on Thomas’s claim of defamation on the ground that they have good and valid affirmative defenses of truth and qualified privilege on which there is no genuine issue of material fact. They argue that defendants communicated truthful statements • that patients had alleged that Thomas had been using cocaine, and that they made these communications only to properly interested persons. They therefore argue that they are entitled to judgment as a matter of law on this claim. Thomas appears to argue that there is a genuine issue of material fact precluding summary judgment on this claim. Thomas’s argument, so far as the court can understand it from Thomas’s affidavit, as his brief sheds no light, is that defendants violated any qualified privilege because they breached confidentiality concerning allegations of Thomas’s cocaine use, and that the allegations became common knowledge within the Center among staff and patients, and within the greater St. Luke’s system. The court notes that defendants’ assertion of these affirmative defenses to the defamation claim is procedurally inadequate. Qualified privilege to a defamation claim is an affirmative defense that Iowa law expressly states must be pleaded. Vinson v. Linn-Mar Community Sch. Dist., 360 N.W.2d 108, 116 (Iowa 1984); Higgins v. Gordon Jewelry Corp., 433 N.W.2d 306, 311 (Iowa App.1988) (quoting Vinson). Under Iowa law, an affirmative defense is one which rests on facts not necessary to support the plaintiffs ease. Erickson v. Wright Welding Supply, Inc., 485 N.W.2d 82, 85-86 (Iowa 1992); Knauss v. City of Des Moines, 357 N.W.2d 573, 576 (Iowa 1984); Peoples Trust & Sav. Bank v. Baird, 346 N.W.2d 1, 4 (Iowa 1984); Baker v. Beal, 225 N.W.2d 106 (Iowa 1975). Any defense which would avoid liability although admitting the allegations of the petition is an affirmative defense. Erickson, 485 N.W.2d at 86 (citing 1 B. Lindahl Iowa Practice § 13.39 (1991)). Defendants have not pleaded these or any other affirmative defenses. Such failure to plead an affirmative defense ordinarily results in waiver of the defense. See, e.g., Erickson, 485 N.W.2d at 85-86 (although defendant would ordinarily have waived an affirmative defense not pleaded on the basis of Iowa Rules of Civil Procedure 72, 101, and 104, a defense under Iowa Code § 613.18 was not such an affirmative defense, and was not waived); Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir.1994) (applying Missouri law, and holding that failure to plead affirmative defense of estoppel waived that defense), cert. denied, — U.S. -, 115 S.Ct. 487, 130 L.Ed.2d 399 (1994); Bissett v. Burlington Northern R.R. Co., 969 F.2d 727, 731 (8th Cir.1992) (failure to plead affirmative defense results in waiver of the defense and its exclusion from the case, citing Sayre v. Musicland Group, Inc., 850 F.2d 350, 354 (8th Cir.1988)); Piekarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1489 (8th Cir.1992) (under Minnesota rules of procedure, failure to plead an affirmative defense constitutes waiver of the defense), cert. denied, — U.S.-, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992); but see Northwest Airlines, Inc. v. Federal Ins. Co., 32 F.3d 349, 357 (8th Cir.1994) (citing Continental Ins. Co. v. Bergquist, 400 N.W.2d 199 (Minn.Ct.App.1987), for the proposition that even where insurer failed adequately to plead the affirmative defense of insured’s injury before policy became effective, court could entertain that defense because insurance policy cannot be extended by waiver, nor can liability be imposed on an insurer for risks not specifically undertaken). However, the court concludes that to hold that defendants had waived their affirmative defenses of truth and qualified privilege here is inappropriate because “such a literal interpretation places form over substance.” Costello, Porter, Hill, Heisterkamp & Bushnell v. Providers Fidelity Life Ins. Co., 958 F.2d 836, 837-838 (8th Cir.1992) (footnotes omitted). Defendants would likely seek to amend their answer to add these defenses before trial. The court considers that disposition of the issues now on the merits will serve judicial economy. Furthermore, Thomas has never raised an objection to assertion of these affirmative defenses even though they have not been properly pleaded. Thomas cannot credibly claim prejudice if the court now reaches those affirmative defenses on their merits, which is the basis on which Thomas has challenged them. The court will therefore construe defendants’ presentation of the affirmative defenses in their motion for summary judgment as pleading of the affirmative defenses. To hold “otherwise exalts form over substance — technicality over reality.” U.S. v. Caldwell, 954 F.2d 496 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992). The court wishes to make clear, however, that far the better course is properly to plead affirmative defenses in an answer or timely amendment to an answer as required, or affirmative defenses may be waived. The court has been required to construe both the pleadings of the plaintiff and of the defendants in this case in order to do substantial justice among the parties. The parties are cautioned that in the future the failure to plead federal question jurisdiction by a plaintiff may result in outright dismissal of all of plaintiffs claims. Likewise, the failure of a defendant to plead affirmative defenses in an answer may result in waiver of those defenses. Having construed the submissions of the parties to state a federal claim and affirmative defenses, the court now turns to disposition of the defendants’ motion for summary judgment on the merits. II. STANDARDS FOR SUMMARY JUDGMENT The Eighth Circuit recognizes “that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.” Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Wabwm-Inini, 900 F.2d at 1238 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986)); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part: Rule 56. Summary Judgment (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon ____ The judgment sought shall be rendered forthwith 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 judgment as a matter of law. Fed.R.Civ.P. 56(b) & (c) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265 (1986); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)). A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, here Thomas, and give Thomas 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, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Munz v. Michael, 28 F.3d 795, 796 (8th Cir.1994); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994); Johnson v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir.1993); Burk v. Beene, 948 F.2d 489, 492 (8th Cir.1991); Coday v. City of Springfield, 939 F.2d 666, 667 (8th Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). Procedurally, the moving parties, defendants here, bear “the initial responsibility of informing the district court of the basis for their motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-2553); see also Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). The defendants are not required by Rule 56 to support their motion with affidavits or other similar materials negating the opponent’s claim. Id. “When a moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Thomas is required under Rule 56(e) to 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 a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Although “direct proof is not required to create a jury question, ... to avoid summary judgment, ‘the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.’” Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.1985) (quoting Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984)), cert. denied, 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774 (1986). The necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994). In Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11, Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553, and Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56, the Supreme Court established that a summary judgment motion should be interpreted by the trial court to accomplish its purpose of disposing of factually unsupported claims, and the trial judge’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). The trial court, therefore, must “assess the adequacy of the nonmovants’ response and whether that showing, on admissible evidence, would be sufficient to carry the burden of proof at trial.” Hartnagel, 953 F.2d at 396 (citing Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). If Thomas fails to make a sufficient showing of an essential element of a claim with respect to which he has the burden of proof, then defendants are “entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Woodsmith,, 904 F.2d at 1247. However, if the court can conclude that a reasonable trier of fact could return a verdict for the nonmovant, then summary judgment should not be granted. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burk, 948 F.2d at 492; Woodsmith, 904 F.2d at 1247. With these standards in mind, the court turns to consideration of the defendants’ motion for summary judgment. III. FINDINGS OF FACT A. Undisputed Facts The record reveals that the following facts are undisputed. Thomas was employed at the Center in Sioux City, Iowa, from March 9, 1991, until July 2, 1992. Thomas was a rehabilitation technician at the Center. On January 30, 1992, several patients who had attended a lecture given by Thomas earlier that day reported to Center therapist Craig Mansfield that they believed that Thomas had been using cocaine prior to the lecture. Craig Mansfield reported these allegations to Steve Middleton, the director of adult services at the Center. Mansfield told Middleton about the allegations in the presence of Kevin Beauvais, the director of program effectiveness for the Center. Also in the area at this time were two other employees of the Center, although they were involved in other tasks. Middleton instructed Mansfield to repeat the report to Ann Jons, the manager of adult in-patient programs at the Center at the time, because she was Thomas’s direct supervisor. Middleton also advised his immediate supervisor, Dr. Clifford G. Millard, vice president of psychological and clinical services, about the patients’ allegations. Thomas was unavailable at the time, and was not scheduled to work again until February 3, 1992. On the morning of February 3,1992, Middleton met with patients to confirm the nature of their allegations about Thomas. Middleton then met with Jons and Millard to consider a course of action. They reviewed Center policies, then determined that, in light of Thomas’s former drug addiction, and the business of the Center, they would ask Thomas for a urine sample for drug testing. Later that day, Middleton and Jons met with Thomas in Jons’s office. They discussed the accusations, which Thomas vehemently denied. Middleton and Jons then requested a urine sample, and called a doctor at St. Luke’s to authorize a urinalysis. Middleton and Jons also requested or insisted that Thomas meet with an Employee Assistance Program counselor, which Thomas maintained was unnecessary. Before the meeting ended, Dr. Millard telephoned Jons’s office. He had consulted with St. Luke’s personnel department employees, and had concluded that a urinalysis was inappropriate. He instructed Jons and Middleton to cancel the urinalysis. Thomas became agitated at cancellation of the test, and demanded that it be performed. Thomas then had a meeting with Dr. Millard and Middleton in which he again insisted on a urinalysis. Dr. Millard and Middleton told Thomas that no test was necessary, and that they would take no further action. Plaintiff then left the Center and told two other people, Dr. Dale Wassmuth and Jim Wigton, that he had been accused of drug use and denied a urinalysis to clear himself. He attempted, unsuccessfully, to arrange a urinalysis himself. Subsequently, a paraprofessional position in the intake department of the Center became available. An employee in that department, Lori Milda, suggested to the department director, Kevin Beauvais, that Thomas be considered for the position. Beauvais authorized Milda to discuss the position with Thomas. All of the persons who provided affidavits as part of the record for this summary judgment motion who discussed this position, with the exception of Thomas, stated their belief that the position would have been a promotion for Thomas. Thomas refused to be considered for the job. On July 2, 1992, Thomas terminated his employment with the Center. B. Disputed Facts Thomas asserts that there are a number of genuine issues of material fact. Thomas has presented various affidavits of former employees of the Gordon Center which suggest that the atmosphere at the Center was tense and that the managerial personnel against whom Thomas has brought this suit were difficult to work with. Thomas also asserts that he was “pressured” to take the job in the intake department in an effort to remove him from contact with Center personnel and patients and eventually to shift him out of the Center entirely. Thomas asserts that his personal relationships with his supervisors deteriorated after the incidents of January 30,1992, through February 3,1992. He also asserts that rumors about his alleged drug use became rampant within the Center and the greater St. Luke’s system as the result of unauthorized publication of the allegations in breach of the appropriate standard of confidentiality, thus ruining his reputation as a rehabilitation technician and recovered addict. Thomas asserts that he was mistreated on the basis of his race, and treated less favorably than certain named white males, one of whom allegedly had sexually transmitted diseases and was accused of growing marijuana in his home. Defendants deny that the situations were comparable, but refuse to reveal factual information on the grounds of confidentiality. Defendants also assert that a white male alcoholic was fired for relapsing, but that Thomas was never subjected to any disciplinary measures whatsoever as the result of the allegations by patients that he had been using drugs. IV. LEGAL ANALYSIS The court will consider each of Thomas’s claims, and the grounds defendants assert for summary judgment in their favor on those claims seriatim. However, as an initial matter, the court concludes that the motion for summary judgment on all claims by defendant St. Luke’s Health Systems, Inc., must be granted. St. Luke’s Health Systems, Inc., maintains that it is a separate corporation from the Gordon Center, which is one of several subsidiaries under its umbrella. St. Luke’s Health Systems, Inc., maintains that it is not, and never was, Thomas’s employer. Thomas has not challenged this ground for summary judgment. Thomas has therefore failed to generate a genuine issue of material fact because he has not by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designated “specific facts showing that there is a genuine issue for trial,” Fed. RCiv.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553, to show that St. Luke’s Health Systems, Inc., was indeed his employer. On the basis of the record as it now stands, the court concludes that no reasonable trier of fact could return a verdict for Thomas against St. Luke’s Health Systems, Inc. Thus, summary judgment should be granted in favor of St. Luke’s Health Systems, Inc., and it must be dismissed from this action. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burk, 948 F.2d at 492; Woodsmith, 904 F.2d at 1247. A. The § 1981 Claim Of Race Discrimination The court concluded above in section I.A., beginning at page 6, that Thomas’s discrimination claims must be construed to be claims under 42 U.S.C. § 1981, and that his claims of constructive discharge and disparate treatment are cognizable as claims under § 1981 because they arose after amendment of § 1981 by the 1991 Civil Rights Act. The court therefore turns to the elements of such a claim and the proper analytical framework for the court’s consideration of it. 1. Elements Of A § 1981 Claim To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.). Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir.1994); Mian v. Donaldson Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Section 1981 requires proof of intentional discrimination, Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir.1994) (only intentional discrimination violates § 1981); Hispanic Taco Vendors of Wash. v. City of Pasco, 994 F.2d 676, 679 n. 3 (9th Cir.1993); Von Zuckerstein, 984 F.2d at 1472, as does a disparate treatment claim under Title VII. Lanear v. Safeway Grocery, 843 F.2d 298, 300 (8th Cir.1988). Therefore, the elements of § 1981 claims and Title VII disparate treatment claims are the same. Anderson, 26 F.3d at 1284 n. 7; Von Zuckerstein v. Argonne Natl Lab., 984 F.2d 1467, 1472 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 419, 126 L.Ed.2d 365 (1993); Hicks, 970 F.2d at 491. The activities enumerated in the statute that Thomas asserts have been violated here involve the performance and termination of his employment. Thomas asserts that he was subjected to disparate treatment on the basis of race in the course of his employment leading to his constructive discharge. A constructive discharge exists when an employer deliberately renders the employee’s working conditions intolerable and thus forces the employee to quit. Hukkanen v. Int’l Union of Operating Engineers, Hoisting & Portable Local No. 101, 3 F.3d 281, 284 (8th Cir.1993) (citing the “Bunny Bread” standards for this kind of claim found in Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981)); Smith v. Cleburne County Hosp., 870 F.2d 1375, 1381 (8th Cir.), cert. denied, 493 U.S. 847, 110 S.Ct. 142, 107 L.Ed.2d 100 (1989); Southside Pub. Sch. v. Hill, 827 F.2d 270, 274 (8th Cir.1987). First, the conditions created by the employer must be such that a reasonable person would find them intolerable. Hukkanen, 3 F.3d at 284; Craft v. Metromedia, Inc., 766 F.2d 1205, 1217 (8th Cir.1985), cert. denied, 475 U.S. 1058, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986); Bunny Bread, 646 F.2d at 1256 (8th Cir. 1981). Second, the employer’s actions must have been taken with the intention of forcing the employee to quit. Hukkanen, 3 F.3d at 284; Bunny Bread Co., 646 F.2d at 1256. If there is no evidence that the defendant took actions with an intent to force the plaintiff to quit, even if conditions were intolerable, plaintiffs claim fails. Craft, 766 F.2d at 1217. The standards in Bunny Bread do not mean constructive discharge plaintiffs must prove their employers consciously meant to force them to quit. Hukkanen, 3 F.3d at 284. But, when an employer denies a conscious effort to force an employee to resign, the employer must necessarily be held to intend the reasonable foreseeable consequences of its actions. Hukkanen, 3 F.3d at 284-85. Constructive discharge plaintiffs may therefore satisfy Bunny Bread’s intent requirement by showing their resignation was a reasonably foreseeable consequence of their employers’ discriminatory actions. Id. However, where an employer has attempted to accommodate an employee, the employer has been held not to have constructively discharged the employee. Cleburne County Hosp., 870 F.2d at 1380-81. 2. The Analytical Framework For Thomas’s § 1981 Claims The analytical framework for analysis of claims under § 1981 is the same as that for claims of racial discrimination in employment under 42 U.S.C. § 1983 and. Title VII. St. Mary’s Honor Ctr. v. Hicks, — U.S. -,-n. 1, 113 S.Ct. 2742, 2747 n. 1, 125 L.Ed.2d 407 (1993) (affirming the Eighth Circuit’s conclusion on this point in Hicks v. St. Mary’s Honor Ctr., 970 F.2d 487, 490 (8th Cir.1992)); Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992); Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir.1986). See also Durham, 18 F.3d at 839. Therefore the McDonnell Douglas scheme for the allocation of burdens and the order of presentation of proof also applies in § 1981 cases involving discriminatory treatment in employment situations. See Turnes v. Bank, 36 F.3d 1057 (11th Cir.1994); Howard v. BP Oil Co., 82 F.3d 520, 524 n. 2 (11th Cir.1994); Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir.1994); Von Zuckerstein, 984 F.2d at 1472. Thomas has presented only indirect evidence in support of his claim of race discrimination. It is axiomatic that employment discrimination need not be proved by direct evidence, and indeed, that doing so is often impossible, because as the Supreme Court has said, “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.” Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1108 (8th Cir.) (citing United States Postal Serv. Bd. of Governors v. Athens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)), cert. denied, — U.S. -, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994). In employment discrimination cases based on circumstantial evidence, courts apply the analytical framework of shifting burdens developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined in Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981), and most recently in St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Gaworski, 17 F.3d at 1108. Under McDonnell Douglas and its progeny, the employment discrimination plaintiff has the initial burden of establishing a prima facie case of discrimination by producing evidence that would entitle him to prevail unless contradicted and overcome by evidence produced by the defendant. White v. McDonnell Douglas Corp., 985 F.2d 434, 435 (8th Cir.1993). If a prima facie case is established, the burden then shifts to the employer to rebut the presumption by producing evidence that the employer made the questioned employment decision for a legitimate, non-discriminatory reason. Id. The employer’s explanation of its actions must be “clear and reasonably specific,” Burdine, 450 U.S. at 258, 101 S.Ct. at 1096, but the employer’s burden of production has nonetheless been held to be “exceedingly light.” Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir. 1994) (citing Meeks v. Computer Assocs. Int'l 15 F.3d 1013, 1019 (11th Cir.1994)). If the employer meets this burden of production, the legal presumption that would justify a judgment as a matter of law based on the plaintiffs prima facie case “simply drops out of the picture,” and the plaintiff bears the-burden of persuading the finder of fact that the proffered reasons are pretextual and that the employment decision was the result of discriminatory intent. St. Mary’s, — U.S. at -, 113 S.Ct. at 2749. The Supreme Court has made clear that the ultimate inquiry is whether the employer intentionally discriminated against the plaintiff. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482; White v. McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir.1993). However, if the defendant’s proffered reasons are rejected, the trier of fact may infer the ultimate fact of intentional discrimination. St. Mary’s, — U.S. at-, 113 S.Ct. at 2749 (“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie ease, suffice to show intentional discrimination.”). 3. The Prima Facie Case Under the McDonnell Douglas analysis, the plaintiffs usual burden to establish a prima facie case of employment discrimination is to show that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the job he or she was performing; (3) the plaintiff suffered adverse employment action, or was discharged; (4) a nonmember of the protected class replaced the plaintiff or was not subjected to the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Elliott v. Montgomery Ward & Co., 967 F.2d 1258, 1260 (8th Cir.1992). The Supreme Court noted that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie ease proof required from [the plaintiff] is not necessarily applicable in every respect in differing factual situations.” Id. at 802 n.-13, 93 S.Ct. at 1824 n. 13. To prove a disparate treatment claim, the plaintiff must show that he was “similarly situated in all relevant respects” to a non-member of the protected class who was more favorably treated. Lanear, 843 F.2d at 300 (citing Smith v. Monsanto, 770 F.2d 719, 722 (8th Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986)). In order to determine whether a plaintiff has shown that the employees involved were “similarly situated” for purposes of establishing a prima facie case, the court considers whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways. Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th Cir.1994); Boner v. Bd. of Comm’rs of Little Rock Mun. Water Works, 674 F.2d 693, 697 (8th Cir.1982). It is not up to the employer to prove dissimilarity. Lanear, 843 F.2d at 301 (citing Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94); Bunny Bread, 646 F.2d at 1254. Where a plaintiff establishes a prima facie ease of disparate treatment, if the defendant presents a legitimate, non-discriminatory reason for the disparate treatment, and the plaintiff cannot show that reason was pretextual, the defendant is entitled to summary judgment. Pierce v. Marsh, 859 F.2d 601, 603 (8th Cir.1988). 4. Legitimate, Non-discriminatory Reason And Pretext In the second stage of the analysis, if the employer articulates a reason sufficient to rebut a prima facie case, the inquiry proceeds to a “new level of specificity.” White v. McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir.1993) (citing Burdine, 450 U.S. at 255, 101 S.Ct. at 1094-95). In the third stage of the analytical framework, the plaintiff is entitled to the opportunity to show that the stated reason for the employer’s action was “in fact pretext.” Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825). The plaintiff can show pretext either “by persuading the court that a discriminatory reason more likely motivated the employer or ... by showing that the employer’s proffered explanation is unworthy of credence.” Id. (citing Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). “In short, the district court must decide which party’s explanation of the employer’s motivation it believes.” Id. (citing Aikens, 460 U.S. at 716, 103 S.Ct. at 1482). The sufficiency of evidence to support a factfinder’s determination of discrimination was described in St. Mary's: The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and ... [n]o additional proof of discrimination is required. St. Mary’s, — U.S. at -, 113 S.Ct. at 2749. 5. Thomas’s Discrimination Claims Under § 1981 Defendants assert that Thomas cannot meet his prima facie showing, because he cannot show any adverse employment action. The adverse employment actions of which Thomas complains are defendants’ initial demand for- a urinalysis, subsequently withdrawn, and “pressure” to take another job within the Center. The court concludes that neither of these actions rises to the level of an adverse employment action. Thomas suffered no adverse employment action as the result of the withdrawn request for urinalysis, because it had no impact on his continued employment. Thomas’s continued employment was not ultimately made dependent on a favorable result to the urinalysis; the urinalysis became irrelevant when it was withdrawn. Nor was Thomas ever again subjected to a request for a urinalysis. Thomas asserts that the withdrawal of the urinalysis undermined his employment position, because he was unable to exonerate himself. However, the facts are undisputed that Thomas did not suffer any consequences to his employment in the form of demotion, termination, suspension, unusual or humiliating requirements, change of duties, or termination, which could suggest that his position was undermined. Nor can the court conclude that the offer of another position with the Center was an adverse employment action. The record demonstrates that the position Thomas was encouraged to apply for would have been considered a promotion by persons similarly situated. No consequences flowed from Thomas’s refusal to apply for the position, and his application for the other position was not made a condition of his continued employment. The record is devoid of evidence that Thomas was even “pressured” to apply for the position; rather, the record shows that only one person, who considered herself a friend of Thomas’s, invited Thomas to apply for the position with the permission of the supervisor over that position. None of the defendants or any of Thomas’s superiors suggested or demanded that Thomas seek the other position. Such modest recruitment can hardly be construed to be “pressure” from defendants. For the same reasons the court concludes that Thomas did not suffer any other adverse employment action, the court also concludes that Thomas did not suffer any working conditions that were so intolerable as to cause his constructive discharge. Huk-Icanen, 3 F.3d at 284. Neither the demand for or the withdrawal of the request for a urinalysis in these circumstances would be intolerable to a reasonable person, and Thomas has failed to demonstrate any demotion, termination, suspension, unusual or humiliating requirements, change of duties, or termination, following the withdrawal of the request for a urinalysis which would be intolerable to a reasonable person. Id.; Craft, 766 F.2d at 1217; Bunny Bread Co., 646 F.2d at 1256. Put simply, because there were no adverse employment actions, there were no intolerable conditions sufficient to cause Thomas’s constructive discharge. Thomas makes the general complaint that his working relationship with his superiors deteriorated after the events of January 30 to February 3, 1992, and affidavits of other former employees of the Center indicate that Thomas’s superiors were perceived to be difficult to work with. However, friction and unpleasantness in a working relationship, although uncomfortable, do not amount to the employer’s deliberately rendering the employee’s working conditions intolerable in the circumstances presented here. Finally, there was no intolerable “pressure” placed on Thomas to take a different position that a reasonable person could find caused his constructive discharge. The court also concludes that Thomas has failed to establish a prima facie case of disparate treatment because he has failed to generate a genuine issue of material fact that any non-member of his protected class who was allegedly treated more favorably was “similarly situated in all relevant respects.” Lanear, 843 F.2d at 300. The court has considered whether the employees Thomas has identified were involved in or accused of the same or similar conduct and were disciplined in different ways, more favorable to the non-member of Thomas’s class. Williams, 14 F.3d at 1309. The court concludes that the former employees Thomas has identified either were not accused of the same or similar conduct, or were treated less favorably than was Thomas. In the alternative, the court concludes that even if Thomas did establish a prima facie case by establishing adverse employment action in the form of the demand for a urinalysis and withdrawal of 'that demand, or in the “pressure” to apply for a different position, Thomas has failed to generate a material issue of fact that the nondiscriminatory reasons offered by defendants for their actions are unworthy of belief. Specifically, the court concludes that there is no evidence in this record to support a conclusion that defendants discriminated against Thomas or acted with an intent to discriminate, which is an element of each of Thomas’s claims, and the ultimate inquiry in a discrimination lawsuit. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482; White v. McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir.1993). Defendants were confronted with allegations from patients that one of their rehabilitation technicians had been using cocaine. Defendants had legitimate reasons to be concerned about such allegations. They took reasonable steps to investigate those accusations. Following their investigation and discussion of the matter with Thomas, absolutely nothing happened to change Thomas’s employment status. Therefore the court cannot conclude that defendants either treated or intended to treat Thomas differently from anyone else on the basis of race, and defendants are therefore entitled to summary judgment on Thomas’s § 1981 claims. B. Claims Under Iowa Code Ch. 216 Neither the defendants nor the plaintiff here have in any way distinguished between the discrimination claims brought under § 1981 and the claims brought under Iowa Code Ch. 216, nor does it appear to the court that they have even argued the Chapter 216 claims separately from the discussion of the § 1981 claims. Although the court believes this lack of argument of the discrimination claims under the Iowa statute is the result of oversight rather than design, the court finds that Iowa courts routinely look to fede