In Ackerman v. State of Iowa (No. 20-2226), the Eighth Circuit affirmed the grant of summary judgment on all claims brought by a former Iowa administrative law judge (ALJ) who alleged that her employment was terminated to retaliate against her for testimony she had given in a state legislative investigation about inappropriate political influence within the agency where she worked. The Eighth Circuit concluded that the ALJ’s testimony, which was critical of her supervisor, was not a substantial or motivating factor in the decisions to suspend and later to terminate her. The Eighth Circuit also concluded that the employer’s proffered reason for terminating plaintiff (fraudulent conduct related to her state-provided health insurance) was not pretextual.

Plaintiff Susan Ackerman was employed by the state of Iowa as an ALJ in the Iowa Workforce Development agency. Her duties included hearing contested cases and deciding whether terminated employees were entitled to unemployment compensation benefits.

In late 2012, Ackerman sought to add her daughter (then 27 years old) to her employer-provided health-insurance plan for the upcoming calendar year. Children over the age of 26 could be added to an employee’s plan only if the child was a full-time student and unmarried. Ackerman’s daughter was separated from her spouse but not yet divorced. Ackerman emailed a human-resources employee about adding her daughter to Ackerman’s 2013 health plan. The employee (with whom Ackerman had worked for years) responded to the inquiry by tacitly suggesting that Ackerman not be forthright about the daughter’s marital status: “Who has to know she is married??” Ackerman enrolled her daughter in the 2013 health plan, and late in 2013 re-enrolled her in the 2014 health plan. As part of the enrollment process, Ackerman completed a form certifying that the daughter was a full-time student and unmarried. The daughter’s divorce was finalized in June 2014.

In August 2014, five ALJs, including Ackerman, were subpoenaed to testify as part of the Iowa Senate Government Oversight Committee’s investigation of complaints about “inappropriate political influence” within the Workforce Development agency’s organizational structure. The agency’s ALJs (merit-based employees) were supervised by Director Teresa Wahlert, a political appointee. Ackerman stated during her testimony that she believed that Wahlert’s supervision of the ALJs permitted political interference with their judicial independence. Wahlert testified the next day. Her testimony included statements that were critical of Ackerman’s work. The Oversight Committee’s findings and recommendations included a recommendation that political appointees refrain from supervising or evaluating ALJs.

Ackerman took a medical leave from mid-September through mid-October 2014. Wahlert completed Ackerman’s annual performance review in November 2014, giving her an overall rating of “meets expectations.”

Shortly thereafter, Ackerman attempted to re-enroll her daughter (now divorced) in the 2015 health plan. Ackerman called human resources and spoke to a different employee than the one she had emailed in late 2012. Ackerman notified the employee that her daughter’s last name had changed because of the recent divorce. The employee, noticing the discrepancies between the July 2014 divorce date and Ackerman’s certifications in previous years that the daughter was unmarried, referred the matter to the human-resources supervisor, who in turn informed the state’s administrative department. Ackerman was suspended with pay in December 2014, pending a misconduct investigation.

The investigation concluded that Ackerman had fraudulently filed insurance enrollment forms and deliberately falsified her daughter’s marital status. Ackerman’s employment was terminated effective Jan. 30, 2015. The termination letter cited her submission of the paperwork for the 2014 health plan as the reason for her termination and stated that her conduct called into question her integrity and ability to impartially perform her duties as an ALJ.

Ackerman filed a grievance with her union. Ultimately, the grievance matter proceeded to state court, where the court concluded that there was substantial evidence “that Ackerman knowingly lied about her daughter’s marital status in order to enroll her on her health insurance plan.” Ackerman’s union did not appeal that determination.

Ackerman sued the State of Iowa, its Workforce Development agency, Wahlert, Wahlert’s successor, two ALJs who testified in support of Wahlert in August 2014, and the human-resources supervisor in Iowa state court, asserting that she had been suspended and terminated in retaliation for her testimony before the Oversight Committee and that the insurance-fraud investigation was pretextual. Ackerman’s claims included a §1983 First Amendment retaliation claim, as well as various state-law claims. Defendants removed the case to federal court and successfully moved for summary judgment.

The Eighth Circuit (Judges Colloton, Kobes and Wollman) affirmed. Writing for the panel, Judge Wollman held that Ackerman had failed to establish any constitutional violation.

First, the panel concluded that Ackerman had not shown that her testimony before the Oversight Committee was a substantial or motivating factor in the decisions to suspend and to terminate her. The panel noted that although “causation is generally a jury question, we must determine ‘if sufficient evidence exists to create a factual question for the jury’” (quoting Henry v. Johnson, 950 F.3d 1005, 1014 (8th Cir. 2020)). Ackerman argued that Wahlert had retaliatory intent for the suspension, pointing to evidence that, before Wahlert testified to the Oversight Committee, Wahlert may have requested negative information about Ackerman. The panel rejected this argument because Wahlert’s pre-testimony inquiries were properly related to her testimony. The panel also noted that Wahlert’s performance review of Ackerman, done after the testimony, was not evidence of a retaliatory motive because it was “a neutral review that had no effect on Ackerman’s employment.” See Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir. 2000). The panel observed that after Ackerman’s testimony, no adverse actions took place for three months—until the human-resources employee became confused by Ackerman’s telephone call about her daughter’s name change, triggering the investigation and suspension. The panel concluded that, even taking into account that Ackerman was on medical leave for part of that three-month interval, there was insufficient temporal proximity to support an inference of causation.

The panel also held that “the intervening discovery by unrelated employees of possible insurance fraud established an independent, non-retaliatory basis for Ackerman’s paid suspension.” Ackerman presented no evidence, for example, that Wahlert instructed anyone in human resources to scour Ackerman’s personnel records for excuses to suspend her. “In light of the evidence that Ackerman was suspended immediately following the discovery of insurance fraud, it is thus unreasonable to infer that Wahlert obtained negative information about Ackerman in advance of testifying, waited three uneventful months, and then—only after concerns of potential misconduct—finally exercised the opportunity to retaliate” (quotation omitted).

Additionally, the panel concluded that Ackerman failed to show that her termination (as opposed to her suspension) was retaliatory. The decision-maker (Wahlert’s successor) was not employed by the Workforce Development agency when Ackerman testified and was not the subject of her testimony. Ackerman produced no evidence to contradict Wahlert’s successor’s testimony in this action that she never discussed Ackerman with Wahlert. “The only evidence to which Ackerman points is the fact that the termination occurred five months after her Oversight Committee testimony,” the panel stated, holding that such a “tenuous temporal connection is insufficient to create a causation question for the jury[.]”

Finally, the panel concluded that even if Ackerman were able to prove retaliatory intent, Ackerman had not shown pretext—for example, by showing that the agency’s legitimate, non-retaliatory stated reasons for the termination were factually baseless or changed over time.

John M. Baker and Katherine M. Swenson are attorneys at Greene Espel PLLP in Minneapolis.