Phillip E. Jones v. University of Iowa the Board of Regents for the State of Iowa Sally Mason, President of the University of Iowa and Individually and the Stolar Partnership, LLP

IN THE SUPREME COURT OF IOWA

No. 12–0292

Filed August 23, 2013

PHILLIP E. JONES,

Appellant,

vs.

UNIVERSITY OF IOWA; THE BOARD OF REGENTS FOR THE STATE

OF IOWA; SALLY MASON, President of the University of Iowa and

Individually; and

THE STOLAR PARTNERSHIP, LLP,

Appellees.

Appeal from the Iowa District Court for Johnson County, Fae E.

Hoover-Grinde, Judge.

Former employee appeals from the district court’s denial of his

motion to compel discovery and the district court’s grant of summary

judgment in favor of the defendants on his claims of wrongful

termination of employment and related causes of action. AFFIRMED.

David J. Dutton, Cheryl L. Weber, and Erin Patrick Lyons of

Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and

Jordan G. Esbrook, Assistant Attorneys General, for appellees University

of Iowa, The Board of Regents for the State of Iowa, and Sally Mason.

2

Gregory M. Lederer and Megan R. Dimitt of Lederer Weston Craig

PLC, Cedar Rapids, for appellee Stolar Partnership, LLP.

3

ZAGER, Justice.

Phillip E. Jones, dean of students and vice president of student

services at the University of Iowa, was terminated from his employment

by University of Iowa President Sally Mason. This employment decision

was based partially on a report from the Stolar Partnership (Stolar), a law

firm retained by the Board of Regents for the State of Iowa (Regents), to

investigate the University’s response to a sexual assault of a student–

athlete by other student athletes.

Jones sued the University of Iowa, Mason, the Regents, and Stolar

for wrongful termination and related causes of action. The district court

granted summary judgment to all the defendants on all claims. Jones

appealed, and we retained the appeal.

Jones asserts the district court committed error when it denied his

motion to compel discovery of hundreds of communications, which the

defendants claimed were privileged. Jones also claims the district court

erred when it concluded the attorney general’s certification that Mason

acted within the scope of her employment was conclusive on this issue.

Finally, Jones contends the district court erred when it granted summary

judgment to all of the defendants on his various claims. For the reasons

set forth below, we affirm the rulings of the district court.

I. Background Facts and Proceedings.1

On September 23, 2008, Jones was terminated from his

employment as dean of students and vice president of student services at

the University of Iowa. Jones had been dean of students since about

1981. He did not have a written contract of employment with the

1Because we are reviewing the district court’s grant of summary judgment, we

set forth the facts in the light most favorable to Jones, the nonmoving party. Rivera v.

Woodward Res. Ctr., 830 N.W.2d 724, 727 (Iowa 2013).

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University, and the parties agree that he was an at-will employee. Jones

reported directly to Mason, president of the University. In his position as

dean of students, Jones oversaw a comprehensive array of University

student services, including residence life, the Iowa Memorial Union,

disciplinary processes, student government, and numerous other

departments and functions of the University. He was the administrator

of the Code of Student Life and related policies and regulations governing

students. Mason terminated Jones’s employment after reviewing a report

prepared by Stolar, which was critical of Jones’s handling of an alleged

October 2007 sexual assault of a female student–athlete perpetrated on

her by two members of the University football team. The assault

occurred at a University dormitory in the early morning hours of October

14, 2007.2

On the morning of October 15, Fred Mims, associate athletic

director for student services, advised Jones’s office by telephone of the

alleged sexual assault. Mims had been contacted by the head coaches of

both the victim and the perpetrators, and had discussed the incident

with Gary Barta, the University’s athletic director. Jones learned directly

of the incident later that day when Steve Parrott, director of university

relations, advised him and Marcus Mills, general counsel for the

University, of “an incident or . . . a sexual assault in a residence hall”

that had occurred over the weekend. Jones did not take any action as a

result of this information. During the next several days, the department

of athletics (DOA) commenced an informal investigation into the incident.

DOA met with the victim and her father, the alleged perpetrators, and

otherwise attempted to handle the incident on an informal basis. This

2One of the football players was ultimately convicted of assault with intent to

commit serious injury, the other of simple assault.

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was purportedly pursuant to the direction of the victim and her father.

This informal investigation also involved many additional members of the

university community.

Jones discussed the incident with Mims on October 18 and 19. By

that time, the football players had been suspended from the football

team. In their discussions, Jones expressed concern about “double

jeopardy” in further action involving the football players. Mims explained

the alleged perpetrators had been suspended for team rule infractions for

withholding information from the team coach, not due to the allegations

of sexual assault which were governed by the Code of Student Life. It

was determined the alleged perpetrators should be informed of the

possibility of further action in writing.

On October 19, Mims again contacted Jones to discuss the

incident and how Jones’s office planned to proceed. Jones expressed

concern about the handling of the investigation and stated that the

incident should be reported to the Office of Equal Opportunity and

Diversity (EOD)—the University’s administrative department designated

to investigate complaints of sexual assault. At the conclusion of this

conversation, Jones discussed the situation with his associate dean, Tom

Baker. Jones’s assessment was, “[W]ell, let’s see if we get a complaint.

When we get a complaint, then we can do something. Otherwise, all

these rumors, we can’t do very much with them.”

On October 23, DOA decided that all notes and investigative

interviews gathered as part of its informal investigation should be

finalized and a report turned over to the office of EOD, the office of

student affairs, and the general counsel. Jones received his copy of the

report late that morning or early afternoon. Jones scanned through the

documents, but because it did not contain a formal, signed complaint, he

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elected to place the report in a general disciplinary file. Jones did not

call EOD, contact Mims, contact the victim, or take any other action at

that time.

As a result of the DOA report, the EOD commenced a formal

investigation. While this formal investigation was proceeding, the victim

and her parents contacted several university officials in an attempt to

obtain information regarding the status of the investigation. During this

time, the victim was subjected to continued harassment and retaliation

from members of the football team, as well as other student–athletes.

This included physical threats and verbal insults in the dormitory dining

area in the building where the assault allegedly occurred, and where she

still resided.

Due to the continued harassment, and general dissatisfaction with

the University’s response to the incident, the victim filed a criminal

complaint with the University Department of Public Safety on

November 5. She also reported the assault to the Johnson County

Attorney, who charged and prosecuted the two football players. Around

this time the victim first learned of the second perpetrator who allegedly

assaulted her while she was unconscious. Upon learning of his identity,

she realized this individual was living down the hall from her.

On November 13, at the direction of Mills, the victim’s mother

contacted Jones to discuss the continuing harassment and the victim’s

housing situation. During this conversation, Jones indicated to the

victim’s mother that he “had nothing” on the incident, and he did not

know who she (the mother) was. Jones also indicated that without a

complaint, specific information, or credible allegations sent to his office,

he was unable to take action.

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On November 15, EOD completed a formal written report of its

findings pursuant to its investigation.3 The next day, Jones met with

Chuck Green, director of public safety for the University, as well as the

victim, the victim’s mother, and a rape victim advocate. At that meeting,

the victim requested that she be released from her housing contract, a

request which Jones granted. The victim also provided Jones with the

names of several student–athletes who she claimed had subjected her to

harassment. Jones subsequently sent letters to those individuals

notifying them of the University’s anti-retaliation policy. However, the

letters did not inform these individuals that they had already been

accused of conduct in violation of the Code of Student Life. Jones did

not initiate any in-person contact with these individuals. He had no

additional contact with the victim or her family and did not take any

other action with respect to the alleged assault.

Also on November 16, the Regents asked their general counsel,

Tom Evans, and their acting executive director, Andrew Baumert, to

conduct an investigation into the University’s compliance with University

policies and procedures in responding to the sexual assault complaint.

While this investigation was occurring, the victim’s parents wrote two

letters to various University officials sharply critical of the University’s

handling of the incident. The first letter was written on November 19,

2007, and the second letter was written on May 16, 2008. The second

letter stated, in part:

My purpose in writing is to address the failings of your

system and the effects those failures have had on [the

3This report was not disseminated to anyone at this time because on November

14, 2007, the Johnson County Attorney obtained an order to issue a subpoena duces

tecum to the EOD. The order also instructed the EOD not to divulge any information

contained in the materials released pursuant to the subpoena or any information about

the investigation itself.

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victim]. . . . I include Dean Jones because he told [the

victim] and me in person that [the victim] would be protected

by him and his office for the duration of the year. That did

not happen. [The victim] was taunted, heckled, harassed for

the entire school year. . . .

Jones received both letters, read them line by line, and placed them in a

general file without taking any additional action. No one within the

University turned these letters over to the Regents.

After Evans and Baumert’s investigation, a report was submitted to

the Regents on June 11, 2008. Evans and Baumert concluded:

After a comprehensive review of the facts of the alleged

incident and each of the applicable University policies, it is

clear that University officials fully complied with internal

procedural requirements. The University fully explained the

various reporting options to the alleged victim, conducted

investigations as required, offered the victim appropriate

accommodation and expressed full support for the victim

regardless of the option which she elected to pursue.

In June 2008, Jones informed Mason that he intended to retire in

June 2009. Mason agreed to accept his resignation but requested Jones

not make the decision public at that time so that he would not appear to

be a “lame duck.” Jones agreed to Mason’s request. During this

conversation, Jones also expressed to Mason his intention to become a

higher education consultant after his retirement from the University.

The Regents learned of the two letters written by the victim’s

parents when the letters became public in mid-July. On July 22, the

Regents convened a special meeting and established an advisory

committee to address two issues:

1. Reopen the investigation of the University of Iowa’s

handling of the alleged sexual assault on a female student

on the morning of October 14, 2007, including but not

limited to:

a. Using the June 12 Board’s General Counsel’s report as

a starting point, conduct a review of all actions taken by

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University personnel in response to the alleged assault

from October 14, to the present;

b. Assess whether the University’s policies and procedures

were followed;

c. Evaluate each of the charges advanced in the November

and May letters from the alleged victim’s mother to the

University; and

d. Recommend any policy changes or other actions

determined to be appropriate.

2. Examine the circumstances around the decision not to

disclose to the Board of Regents the existence of the

November and May letters, how the decision was made,

and on what basis. Again, the Advisory Committee is to

recommend any policy changes or other actions

appropriate.

The committee was also authorized to “hire outside counsel as needed.”

An agreement for special counsel was entered into between the

Regents and Stolar, and in late July, Stolar began its investigation. The

special agreement authorized Stolar to conduct the following activities:

(1) Review[] the specific allegations contained in the

November 19, 2007, and May 16, 2008, letters written by the

alleged victim’s parents;

(2) Conduct[] personal interviews with the alleged victim and

her parents;

(3) Conduct[] personal interviews of University students,

officials and personnel, including, but not limited to, those

who had been involved in past investigations of the incident;

(4) Interview[] persons with expertise in the areas of sexual

violence victims’ advocacy and rights;

(5) Analyze[] the reasons all relevant documents were not

provided to the Board of Regents during its prior

investigation of the incident;

(6) Review[] all current applicable University policies and

procedures, including sexual assault and sexual harassment

policies;

(7) Review[] such policies and procedures in conjunction with

applicable state and federal laws and regulations;

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(8) Evaluate[] the impact of relevant laws and court orders

upon the University’s response to the incident; and

(9) Review[] past investigations and recommendations of

sexually related complaints and incidents at the University.

As part of its investigation, Jones and numerous other officials at

the University were interviewed. Stolar also reviewed University policies

and procedures, provisions of the Family Educational Rights and Privacy

Act (FERPA) and its federal regulations, provisions of the Health

Insurance Portability and Accountability Act (HIPAA), provisions of the

Clery Act and its federal regulations, and relevant Iowa statutes.

On September 18, Stolar’s report was provided to the Regents and

various members of the university community, including Jones. The

report was not made public at that time. The report evaluated the

response to the incident by University departments and personnel and

included: “(i) an assessment of whether relevant University policies and

procedures were followed; (ii) identification of problems or concerns with

existing policies and procedures; and (iii) preliminary recommendations

regarding changes to policies and procedures.” The report, which was

highly critical of Jones, contained the following statements regarding his

handling of the sexual assault allegation:

The investigation confirmed that while Jones told the

Student-Athlete’s mother on November 13 that he “had

nothing” on the alleged sexual assault and that he did not

know her name or her daughter’s name, Jones (a) was

informed of the incident by Fred Mims on the morning of

October 15, (b) had other conversations with Fred Mims

during the first week after it occurred, and (c) had received a

report on the incident from the Department of Athletics on

October 23. Jones failed to give the Investigators any

satisfactory explanation for this misstatement.

....

. . . Jones was aware of the allegations against Football

Player #1 on October 15. He was aware of the allegations

against Football Player #2 by October 23 when he received

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the Department of Athletics’ report on the incident. At no

point did he exercise his interim sanction power to remove

either one of them from the dormitory they shared with the

Student-Athlete. When the Student-Athlete was finally

informed of the involvement of Football Player #2 on

November 9, she realized that he had been living down the

hall from her in a female student’s room for three weeks.

....

. . . The Office of the Vice President for Student Services and

Dean of Students also failed in its responsibilities to the

Student-Athlete. While Phillips Jones’ failure to act did not

technically violate the “letter” of the University’s policies and

procedures, his inaction was fundamentally inconsistent

with the “substance” and intent of those policies. . . .

....

. . . Phillip Jones’ response to the retaliatory and harassing

behavior directed at the Student-Athlete was insufficient and

ineffective. . . . The letters Jones sent were not effectively

worded and did not inform the student athletes that they

had already been accused of conduct in violation of the

University’s anti-retaliation policy, and there was no in-

person followup. . . . Jones failed to commence disciplinary

action against the student-athletes identified by the Student-

Athlete for their behavior, despite his authority to do so.

....

. . . Jones’ misstatements and poor communications were

largely responsible for the Student-Athlete’s mother’s

perception that the Department of Athletics was attempting

to cover up her daughter’s allegations.

....

. . . The interview and notes show that he (Jones) believed

the student athlete and her family to be “forum shopping,”

asking for his help when they became dissatisfied with the

Department of Athletics’ investigation.

....

The Office of the Vice President for Student Services and

Dean of Students failed in its responsibilities to the Student-

Athlete and to the University in this case. Phillip Jones had

the authority to intervene at numerous points in the process

and to achieve the results necessary to protect the Student-

Athlete. As early as the day after the alleged assault, Jones

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knew of the incident and had authority and resources to

separate the alleged perpetrators from the Student-Athlete.

At the direction of the Regents, the Stolar report was subsequently

released to the public in its entirety. Jones and Mason spoke by

telephone on September 19, at which time Jones indicated he disagreed

with the conclusions in the report. Mason indicated that she agreed with

the conclusions of the report, and requested an in-person meeting to

discuss the report and Jones’s further employment with the University.

However, an in-person meeting did not take place because Jones was

subsequently hospitalized as a result of a medical condition. On

September 23, Mason sent Jones a letter terminating his employment

with the University due to a “loss of confidence and trust in [him] based

upon [his] failure to perform the duties and responsibilities of [his]

position on behalf of the University of Iowa in response to the [October]

2007 sexual assault.” On September 25, Mason made additional

statements to the Regents regarding her decision to terminate Jones’s

employment. She stated:

“Failing a student who asks for our help is unacceptable.”

“The Stolar report criticizes Jones for insensitivity, for telling

the alleged victim that he did not know who she was.”

Mason also made the following statements to the media:

“I need complete confidence in my senior staff moving

forward and I no longer felt I had that with . . . Phil Jones.”

“I am disappointed, ashamed, embarrassed for how this case

was handled. I was two and a half months on the job. I

trusted my senior advisors to be doing what was supposed to

be done. I followed as closely as I could. I was very

disappointed when I learned how significantly some of my

senior staff fell in terms of their responsibility.”

“I thought extremely hard and talked with . . . Phillip Jones

about what (his) plans might be and gave (him) the

opportunity to resign.”

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“I felt [the termination of Jones] was the right option.”

Jones presented his side of the story to the Regents through a

letter drafted by his legal counsel. Therein, he disagreed with Mason’s

decision to terminate him and the Stolar findings regarding his handling

of the alleged sexual assault. The entire matter, including Jones’s

termination, was highly publicized in the media.

During the summer of 2009, Jones brought suit against the

University, the Regents, Mason as president of the University and

individually (collectively state defendants), and Stolar, alleging false light

invasion of privacy, defamation, wrongful termination, intentional

interference with an employment contract, intentional interference with

prospective business advantages, due process violations, and civil rights

violations. In June 2010, during the course of discovery, Jones filed a

motion to compel discovery of written communications between the

Regents and Stolar. The defendants, asserting attorney–client privilege,

opposed the motion and produced a privilege log. Subsequently, the

state defendants and Stolar each filed independent motions for summary

judgment on Jones’s claims against them. On January 31, 2012, the

district court filed rulings denying the motion to compel and granting the

defendants motions for summary judgment. Jones appealed and we

retained the appeal.

II. Standard of Review.

“We review the district court’s decisions regarding discovery for an

abuse of discretion.” Comes v. Microsoft Corp., 775 N.W.2d 302, 305

(Iowa 2009). “An abuse of discretion consists of a ruling which rests

upon clearly untenable or unreasonable grounds.” Lawson v. Kurtzhals,

792 N.W.2d 251, 258 (Iowa 2010). In reviewing decisions regarding

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discovery, we give the district court wide latitude. Exotica Botanicals, Inc.

v. Terra Int’l, Inc., 612 N.W.2d 801, 804 (Iowa 2000).

We review questions of statutory interpretation for correction of

legal error. Hardin Cnty. Drainage Dist. 55 v. Union Pac. R.R., 826

N.W.2d 507, 510 (Iowa 2013). Our review of the district court’s decision

to grant summary judgment is also for corrections of errors of law. Pitts

v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 96 (Iowa 2012).

A court should grant summary judgment if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law. In other

words, summary judgment is appropriate if the record

reveals a conflict only concerns the legal consequences of

undisputed facts. When reviewing a court’s decision to grant

summary judgment, we examine the record in the light most

favorable to the nonmoving party and we draw all legitimate

inferences the evidence bears in order to establish the

existence of questions of fact.

Id. at 96–97 (citations and internal quotation marks omitted).

Finally, our review of Jones’s constitutional claims is de novo.

State v. Becker, 818 N.W.2d 135, 141 (Iowa 2012).

III. Analysis.

A. The Motion to Compel Discovery. Jones challenges the

district court’s ruling denying his motion to compel discovery of written

communications between Stolar and the Regents. The court held that

attorney–client privilege protected from disclosure roughly 250 items

summarized in the privilege log produced by these defendants.4

4It is notable that Jones has not challenged the district court’s decision to file

rulings on the motion to compel and motions for summary judgment on the same day.

Nor did he raise a timing argument below or file a motion to postpone ruling on the

summary judgment motions until after he had a ruling on the motion to compel. See

Miller v. Cont’l Ins. Co., 392 N.W.2d 500, 503 (Iowa 1986) (holding plaintiffs were

entitled to a ruling on their motion to compel prior to adjudication of defendants’

motion for summary judgment).

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1. Attorney–client privilege and waiver. On appeal, Jones assigns

error to the district court’s ruling on attorney–client privilege.

Alternatively, Jones claims that by releasing the Stolar report, the

Regents waived the attorney–client privilege as to all confidential

communications between the Regents and Stolar concerning the report.

We elect to bypass both of these arguments. Even if we found the

district court’s ruling on Jones’s motion to compel was erroneous, we

would still conclude that the error is harmless because Jones has not

even attempted to articulate how the withheld communications would

have altered the outcome on any of his claims.

It is well-settled that nonprejudicial error is never ground for

reversal on appeal. See Bengford v. Carlem Corp., 156 N.W.2d 855, 867

(Iowa 1968). Furthermore, we do not presume the existence of prejudice

based on an erroneous discovery ruling. See James v. Hyatt Regency

Chi., 707 F.3d 775, 784 (7th Cir. 2013) (“We shall not reverse the district

court’s ruling [on a motion to compel] absent a clear showing that the

denial of discovery resulted in actual and substantial prejudice . . . .”);

Team Cent., Inc. v. Teamco, Inc., 271 N.W.2d 914, 922 (Iowa 1978) (noting

that an erroneous discovery ruling on privilege must be “of sufficient

importance to justify a reversal”); Schroedl v. McTague, 169 N.W.2d 860,

865 (Iowa 1969) (holding that even if trial court’s discovery ruling on

party’s request for admissions was erroneous, there was “no ground for a

reversal as no prejudice therefrom appear[ed] in the record”). “[T]he

burden rests upon the appellant not only to establish error but to further

show that prejudice resulted.” In re Behrend’s Will, 233 Iowa 812, 818,

10 N.W.2d 651, 655 (1943).

In this appeal, Jones has made no attempt to refute the entire

subsection of the state defendants’ brief which argued that disclosure of

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all of the communications at issue would not have altered the outcome

on any of his claims. He has merely alleged that he was “restrained”

from presenting evidence to support his claims on summary judgment

because of the district court’s ruling on the motion to compel. We

recognize the difficulty faced by a party appealing the denial of a motion

to compel. It is impossible for the party to know with exactitude the

content of the information sought or the extent to which it may have

supported the party’s claims or defenses. Nevertheless, at a minimum,

we must require Jones to advance some explanation of how he expected

the withheld communications to support the claims alleged in this

lawsuit. See Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1236 (8th Cir.

2010) (upholding district court ruling barring depositions of CEOs based

on failure “to allege specific prejudice” from the ruling); Dennis v. Osram

Sylvania, Inc., 549 F.3d 851, 860 (1st Cir. 2008) (finding no prejudicial

error based on denial of motion to compel where the challenging party

did not allege the withheld documents would yield any information in

support of his claim); Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672,

684–85 (3d Cir. 1980) (declining to reverse based on plaintiff’s improper

failure to produce certain documents in response to discovery requests

absent “a showing of specific prejudice, rather than general prejudice”).

A bare assertion of prejudice based on an inability to “access all the

evidence” is not enough.5 Accordingly, we affirm the district court’s

ruling on the motion to compel.

5We also note that our resolution of the state sovereign immunity issue

significantly diminishes the potential usefulness of the withheld communications.

Jones’s defamation, false light invasion of privacy, and intentional interference claims

against the state defendants are all barred by the Iowa Tort Claims Act. His

employment discrimination claim is lodged only against Mason. However, Mason was

only a party to one communication which is listed as a “request for documents” in the

privilege log. The communications could not possibly affect our analysis on the

procedural due process claim. That leaves his wrongful discharge claims against the

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B. Summary Judgment on Claims Against the State

Defendants.

1. False light and defamation claims. Jones challenges the district

court’s grant of summary judgment on his false light invasion of privacy

and defamation claims against the state defendants. Accordingly, we

must examine whether the Iowa Tort Claims Act shields the state

defendants from tort liability.

a. Claims against the institutional state defendants. We have

recently examined the Iowa Tort Claims Act (ITCA) in some detail.

“Generally, the State may be sued for damage caused by the negligent or

wrongful acts or omissions of state employees while acting within the

scope of employment to the same extent that a private person may be

sued.” McGill v. Fish, 790 N.W.2d 113, 117 (Iowa 2010) (citing Iowa Code

§ 669.2(3)(a) (1995)). State employees engaging in wrongful conduct may

also be sued personally. Id. (citing Iowa Code § 669.2(3)(b)). Yet, as long

as the employee was acting within the scope of employment at all

relevant times, the suit is deemed to be an action against the state. Iowa

Code § 669.5(2) (2009); see also Dickerson v. Mertz, 547 N.W.2d 208, 212

(Iowa 1996) (finding state department of natural resources employees

were cloaked with sovereign immunity because plaintiff did not allege

they were acting outside the scope of their employment).

Prior to the enactment of ITCA, the doctrine of sovereign immunity

protected the state and its agencies from suits in tort. Lloyd v. State, 251

N.W.2d 551, 555 (Iowa 1977). ITCA modified the doctrine by waiving

immunity for some torts against the government and its agencies. Id.

______________________________________

state defendants, as well as the defamation and intentional interference claims against

Stolar. We find it doubtful the communications at issue could rescue any of these

claims. In any event, it is Jones’s burden to establish how the evidence sought could

have altered the outcome.

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The waiver of sovereign immunity, however, applies only to the actions

specified in the statute. Id. Defamation claims against the state are

barred by ITCA, which prohibits a litigant from bringing “[a]ny claim

arising out of assault, battery, false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander, misrepresentation, deceit,

or interference with contract rights.” Iowa Code § 669.14(4). Similarly,

we find Jones’s false light claims against the state are barred by ITCA.

The Southern District of Iowa recently considered similar claims against

these same defendants based on the Stolar report. Mills v. Iowa Bd. of

Regents, 770 F. Supp. 2d 986 (S.D. Iowa 2011). The court concluded the

“[p]laintiff’s cause of action for false light invasion of privacy is founded

on precisely those allegedly false statements by Mason . . . that form the

basis for his defamation claims,” and, therefore, “[p]laintiff’s false light

invasion of privacy claim ‘arises’ out of a claim for defamation, such that

it is barred by [Iowa Code section] 669.14(4).” Id. at 998. We agree with

the federal court’s conclusion. Because the state is immune from suit for

false light invasion of privacy and defamation under ITCA, the district

court was correct in granting summary judgment in favor of the

institutional state defendants.

b. Defamation and false light claims against Mason. Jones’s

defamation and false light claims against Mason may proceed if the

conduct at issue is deemed to have been outside the scope of her

employment. Iowa Code section 669.5 states:

Upon certification by the attorney general that a defendant

in a suit was an employee of the state acting within the

scope of the employee’s office or employment at the time of

the incident upon which the claim is based, the suit

commenced upon the claim shall be deemed an action

against the state . . . .

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Iowa Code § 669.5(2)(a). In this case, the Attorney General certified that

Mason was acting within the scope of her employment as President of the

University of Iowa at all relevant times.

Iowa Code section 669.5(2)(b) gives a defendant the option to

petition the court if the attorney general refuses to certify that a state

employee was acting within the scope of his or her office. However, it

does not expressly provide for a plaintiff to petition for reversal of the

attorney general’s decision to certify. Id. § 669.5(2)(b). Accordingly,

Mason argues the attorney general’s certification is conclusive on the

question of whether she was acting within the scope of her employment

and Jones’s action against her must be considered an action against the

state. In Mills, the Iowa federal district court agreed with this position

regarding the conclusiveness of the attorney general’s certification under

section 669.5(2)(a). 770 F. Supp. 2d at 994–95.

Conversely, Jones contends the district court erred in accepting

the attorney general’s certification as binding. In support of this

position, he points out that section 669.5(2)(b) does not expressly prevent

the district court from reexamining the facts to determine whether the

attorney general’s certification was correct. Alternatively, he argues

section 669.5(2)(b) is unconstitutional. Ultimately, we need not reach

Jones’s statutory construction and constitutional arguments concerning

section 669.5(2)(b). See State v. Button, 622 N.W.2d 480, 485 (Iowa

2001) (“Ordinarily we will not pass upon constitutional arguments if

there are other grounds on which to resolve the case.”). Assuming

without deciding that the attorney general’s certification is not conclusive

and binding on the court, we still conclude Mason was acting within the

scope of her employment at all relevant times.

20

Section 669.2 of ITCA sets forth the following definition: “ ‘Acting

within the scope of the employee’s office or employment’ means acting in

the employee’s line of duty as an employee of the state.” Iowa Code

§ 669.2(1). At common law we have explained the scope of employment

concept as follows:

for an act to be within the scope of employment the conduct

complained of must be of the same general nature as that

authorized or incidental to the conduct authorized. Thus, an

act is deemed to be within the scope of one’s employment

where such act is necessary to accomplish the purpose of

the employment and is intended for such purpose. The

question, therefore, is whether the employee’s conduct is so

unlike that authorized that it is substantially different.

Godar v. Edwards, 588 N.W.2d 701, 705–06 (Iowa 1999) (citations and

internal quotation marks omitted). While we acknowledge Godar

discusses scope of employment in the context of respondeat superior, we

find this common law formulation instructive.

Jones essentially argues Mason improperly blamed him for the

mishandling of the sexual assault investigation in order to protect herself

and preserve her position with the University. He contends “[h]eaping

false blame on Jones was not her ‘job’ as the University’s President” and,

accordingly, her conduct was outside the scope of her employment. As

discussed below, it is undisputed in this record that Jones was

terminated due to Mason’s loss of confidence in his professional abilities

based on his handling of the sexual assault incident. A termination on

this basis was well within the scope of Mason’s employment. We are not

persuaded that a genuine issue of material fact exists on this issue.

Therefore, Mason enjoys the same sovereign immunity as the

institutional state defendants. See Iowa Code § 669.5(2)(a).

21

2. Intentional interference claims.6 Jones challenges the district

court’s grant of summary judgment on his claims against Mason for

intentional interference with an existing employment contract and

intentional interference with prospective business advantages. ITCA

does not waive state sovereign immunity for “[a]ny claim arising out of

. . . interference with contract rights.” Id. § 669.14(4). Accordingly,

claims against the state for intentional interference with an existing

employment contract are barred. Moreover, we interpreted this statutory

language in North v. State and concluded that the “interference with

contract rights” language encompasses claims of tortious interference

with prospective business advantages. 400 N.W.2d 566, 569–70 (Iowa

1987). Because we have determined that Mason was acting within the

scope of her employment, Jones’s intentional interference claims are

deemed claims against the state barred by ITCA.

3. Wrongful discharge. Jones also alleged wrongful discharge in

violation of public policy against the state defendants. We first

recognized this tort in 1988. Springer v. Weeks & Leo Co., 429 N.W.2d

558, 560 (Iowa 1988) (“We believe a cause of action should exist for

tortious interference with the contract of hire when the discharge serves

to frustrate a well-recognized and defined public policy of the state.”).

Wrongful discharge is an exception to Iowa’s general rule that

employment is at-will. Berry v. Liberty Holdings, Inc., 803 N.W.2d 106,

109 (Iowa 2011). At-will employment “means that, absent a valid

6Jones does not appeal the summary judgment ruling on his claim of intentional

interference with an employment contract against the institutional state defendants.

Citing Klooster v. North Iowa State Bank, he correctly concedes that because the

institutional state defendants were parties to the employment relationship, they cannot

be liable under an intentional interference with existing business relationships theory.

404 N.W.2d 564, 570 (Iowa 1987). Nor does he appeal the district court ruling on his

claim of intentional interference with prospective business advantages against the

institutional state defendants.

22

contract of employment, the employment relationship is terminable by

either party at any time, for any reason, or for no reason at all.” Id.

(citation and internal quotation marks omitted). The narrow public-

policy exception to the at-will employment doctrine “limits an employer’s

discretion to discharge an at-will employee when the discharge would

undermine a clearly defined and well-recognized public policy of the

state.” Id.

We have set forth the parameters of a successful claim of wrongful

discharge in violation of public policy as follows:

(1) the existence of a clearly defined and well-recognized

public policy that protects the employee’s activity; (2) this

public policy would be undermined by the employee’s

discharge from employment; (3) the employee engaged in the

protected activity, and this conduct was the reason the

employer discharged the employee; and (4) the employer had

no overriding business justification for the discharge.

Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 300,

2013 WL 3958293, at *6 (Iowa 2013) (quoting Berry, 803 N.W.2d at 109–

10).

Jones claims that Mason violated the University’s conflict-of-

interest regulations when she terminated him. Section 18.5(b) of the

University’s Operations Manual states: “any activity that has significant

financial or personal considerations for employees that may compromise,

or appear to compromise, their professional judgment must be disclosed

and managed.” We have recognized that “administrative regulations can

serve as a source of public policy to give rise to a claim of wrongful

discharge from employment.” Jasper v. H. Nizam, Inc., 764 N.W.2d 751,

757 (Iowa 2009). However, Jones has not alleged that he was terminated

for engaging in any activity protected by the University’s conflict-of-

interest regulations. Thus, the first element of the tort has not been met.

23

Jones also argues the University’s sexual assault policy contains a

clearly defined public policy of the state and that he was terminated for

following it. It is unnecessary to examine whether Jones can satisfy the

first two requirements of the public policy exception because there is no

evidence that would permit a reasonable jury to conclude Jones was

terminated for following the sexual assault policy. Mason’s letter to

Jones explaining his termination stated,

This action is the result of my loss of confidence and

trust in you based upon your failure to perform the duties

and responsibilities of your position on behalf of the

University of Iowa in response to the [October] 2007 sexual

assault.

In order to avoid summary judgment, Jones needs to establish that

a reasonable jury could find he was fired because he followed the sexual

assault policy. However, he has not cited any record evidence criticizing

him for following the sexual assault policy. To the contrary, while the

Stolar report concluded Jones had not violated the “letter” of the

University sexual assault policy, it concluded his conduct was

“fundamentally inconsistent with [its] ‘substance’ and intent.” The report

also concluded that, although Jones was aware of the allegations against

the two football players, he never exercised his power to remove either

one of them from the dormitory they shared with the alleged victim. The

report further concluded that Jones’s “response to the retaliatory and

harassing behavior directed at the victim was insufficient and

ineffective.” Instead of exercising his authority to commence disciplinary

action against those harassing the alleged victim, Jones merely sent

them letters informing them of the existence of the University’s anti-

retaliation policy. Thus, the record evidence only demonstrates Jones’s

termination was based on a reportedly inadequate utilization of the

24

policy to secure the rights and safety of the alleged victim.7 Accordingly,

the record does not contain a genuine issue of material fact as to

whether Jones was fired for following the sexual assault policy, and we

must affirm the district court’s ruling on Jones’s wrongful discharge

claim.

4. Due process. The district court granted summary judgment for

the state defendants on Jones’s due process claims brought under 42

U.S.C. § 1983 (2006 & Supp. V. 2011). This claim was properly disposed

as to the institutional state defendants because the University of Iowa

and the Board of Regents are not persons within the meaning of § 1983.

See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64–66, 109 S. Ct.

2304, 2308–11, 105 L. Ed. 2d 45, 53–55 (1989). However, Jones has

properly alleged this claim against Mason in her individual capacity. See

Burlison v. Springfield Pub. Sch., 708 F.3d 1034, 1041 (8th Cir. 2013) (“A

government official can be liable [under § 1983] in his individual capacity

if ‘a causal link to, and direct responsibility for, the deprivation of rights’

is shown.” (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir.

2006)). Jones contends Mason violated the Due Process Clause by

denying him the benefit of a name-clearing hearing.

“Due process is a flexible concept that varies with the particular

situation, and its fundamental requirement . . . is the opportunity to be

heard at a meaningful time and in a meaningful manner.” United States

v. BP Amoco Oil PLC, 277 F.3d 1012, 1017 (8th Cir. 2002) (citation and

internal quotation marks omitted). Procedural due process claims center

on the “requirement that a person in jeopardy of serious loss [be given]

7Notably,in support of his defamation claim against Mason, Jones contends he

was fired because Mason was using him as a scapegoat in order to protect her own

professional interests.

25

notice of the case against him and opportunity to meet it.” Mathews v.

Eldridge, 424 U.S. 319, 348–49, 96 S. Ct. 893, 909, 47 L. Ed. 2d 18, 41

(1976) (citation and internal quotation marks omitted). Further, “[a]ll

that is necessary is that the procedures be tailored . . . to the capacities

and circumstances of those who are to be heard, to insure that they are

given a meaningful opportunity to present their case.” Id. at 349, 96 S.

Ct. at 909, 47 L. Ed. 2d at 41 (citation and internal quotation marks

omitted).

We have established a two-step process for determining whether a

procedural due process violation has occurred. State v. Seering, 701

N.W.2d 655, 665 (Iowa 2005). First, we must determine whether we are

dealing with a protected liberty or property interest. Id. Second, if we

determine that a protected interest is at stake, we balance three factors

to determine what process is due. Id.

First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such

interest through the procedures used, and the probable

value, if any, of additional or substitute procedural

safeguards; and finally, the Government’s interest, including

the function involved and the fiscal and administrative

burdens that the additional or substitute procedural

requirement[s] would entail.

Mathews, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33; accord

Seering, 701 N.W.2d at 665.

As stated by the Eighth Circuit,

“An employee’s liberty interests are implicated where the

employer levels accusations at the employee that are so

damaging as to make it difficult or impossible for the

employee to escape the stigma of those charges. The

requisite stigma has generally been found when an employer

has accused an employee of dishonesty, immorality,

criminality, racism, and the like.”

26

Putnam v. Keller, 332 F.3d 541, 546 (8th Cir. 2003) (quoting Winegar v.

Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994)).

When a government employer makes such accusations, an

employee’s due process rights are vindicated by a pretermination name-

clearing hearing giving the employee an opportunity to respond.

Winskowski v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006).

This hearing need not be elaborate. Id. Even “an informal meeting[] with

supervisors may constitute a sufficient pre-termination hearing.” Id.

(citation and internal quotation marks omitted).

In Rush v. Perryman, the Eighth Circuit held that a college

president had a due process right to a name clearing hearing after he

was terminated amidst accusations of “dishonesty, insubordination,

failure to comply with state laws, and willful disregard of board policy.”

579 F.3d 908, 910, 913 (8th Cir. 2009). In contrast, Mason’s statements

regarding Jones’s termination merely stated she had lost confidence in

Jones’s ability to fulfill his professional responsibilities. She also

indicated that he had failed a student and demonstrated insensitivity.

While Mason’s comments could undoubtedly be interpreted as

accusations of professional incompetence, such accusations fall

substantially short of the level of stigma required to establish a

constitutionally protected liberty interest. See Anderson v. Low Rent

Hous. Comm’n of Muscatine, 304 N.W.2d 239, 244–45 (Iowa 1981)

(finding no liberty interest attendant to allegations of petulance and

insubordination and noting that courts have generally held allegations of

incompetence do not implicate a due process liberty interest) (citing

cases). The facts viewed in the light most favorable to Jones do not

establish a genuine fact issue as to whether Jones suffered a procedural

due process violation.

27

5. Employment discrimination. Jones also appeals the summary

judgment ruling on his employment discrimination claim against Mason.

He claimed he was fired based on his race and gender in violation of 42

U.S.C. § 1983.8 The district court concluded Jones failed to properly

plead a claim of employment discrimination, apparently based on the

state defendants’ argument that no cause of action for employment

discrimination exists under § 1983 and that Jones was trying to use

§ 1983 to circumvent the procedural and jurisdictional requirements of

Title VII. The court further concluded that even if Jones had properly

pled an employment discrimination claim, the state defendants were

entitled to summary judgment on it. We affirm because Jones has not

generated a jury question on the pretext element of his claim.

Title VII of the Civil Rights Act of 1964 makes it unlawful to

“discharge . . . or otherwise 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. On the other hand, 42 U.S.C.

§ 1983 provides a private right of action to any U.S. citizen who is

deprived of “any rights, privileges, or immunities secured by the

Constitution and laws” by any person acting “under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the

District of Columbia.” 42 U.S.C. § 1983. Section 1983 does not

establish any substantive rights, rather it serves as a mechanism to

enforce rights “secured by the Constitution of the United States or by any

Act of Congress providing for equal rights.” Chapman v. Houston Welfare

8Jones is an African-American male.

28

Rights Org., 441 U.S. 600, 618, 99 S. Ct. 1905, 1916, 60 L. Ed. 2d 508,

523 (1979).

It is thoroughly established in the federal appellate courts that,

while Title VII is the exclusive remedy for any violation created by its

terms, “its exclusivity ceases when the employer’s conduct also amounts

to a violation of a right secured by the Constitution.” Henley v. Brown,

686 F.3d 634, 642 (8th Cir. 2012) (citing federal circuit court cases).

Hence, an employment discrimination plaintiff may proceed under

§ 1983 if intentional race or gender discrimination is alleged in violation

of the Equal Protection Clause in the Fourteenth Amendment. See, e.g.,

Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th Cir.1986); see also

Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994)

(“Congress did not intend to make Title VII the exclusive remedy for

employment discrimination claims, at least not those claims cognizable

under the Constitution.”). In the context of employment discrimination it

is similarly established that Title VII and § 1983 constitute parallel

causes of action “and the elements of a prima facie case are the same

regardless of which statute the plaintiff uses to seek relief.” Wright v.

Rolette County, 417 F.3d 879, 884 (8th Cir. 2005); see also Lauderdale v.

Tex. Dep’t of Criminal Justice, 512 F.3d 157, 166 (5th Cir. 2007) (“Section

1983 and title VII are parallel causes of action[] [and a]ccordingly, the

inquiry into intentional discrimination is essentially the same for

individual actions brought under sections 1981 and 1983, and Title VII.”

(citations and internal quotation marks omitted)); Demoret v. Zegarelli,

451 F.3d 140, 149 (2d Cir. 2006) (holding that once color of law is

established a § 1983 claim is analogous to an employment discrimination

claim under Title VII, except § 1983 claims can be brought against an

individual); Richmond v. Bd. of Regents, 957 F.2d 595, 598 (8th Cir.

29

1992) (requiring the same prima facie showing for race discrimination

claims under Title VII and 42 U.S.C. § 1983). Therefore, Jones was not

required to follow the statutorily prescribed administrative procedure

required to file a claim under Title VII. See 42 U.S.C. § 2000e–5(b), (c),

(e), (f)(1)). Further, he has properly pled an employment discrimination

claim by invoking § 1983 and advancing the McDonnell Douglas9

framework for intentional discrimination well recognized in Title VII

jurisprudence.

To make a prima facie case under the McDonnell

Douglas framework, [a plaintiff must] show that (1) she was a

member of the protected group; (2) she was qualified to

perform the job; (3) she suffered an adverse employment

action; and (4) circumstances permit an inference of

discrimination. Such a showing creates a presumption of

unlawful discrimination, requiring [a defendant] to produce a

legitimate nondiscriminatory reason for its employment

action. The burden then returns to [the plaintiff] to prove

that [the defendant]’s proffered reason for firing her is

pretextual.

Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1038 (8th Cir.

2010) (citation and internal quotation marks omitted).

We find it unnecessary to resolve the question of whether Jones

has made out a prima facie case of discrimination. Mason has produced

a legitimate nondiscriminatory reason for Jones’s termination and,

accordingly, the burden shifts to Jones to show that the proffered reason

is pretextual. When we evaluate all the evidence in the light most

favorable to Jones, there is no genuine fact issue as to whether he has

carried this burden. In support of his claim, Jones points to Mason’s

deposition testimony. Therein, Mason explains that one of the Stolar

attorneys described Jones’s response to the Stolar investigation as “very

9McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973).

30

defensive and belligerent,” “angry,” “argumentative,” “not particularly

cooperative,” and “angry and defensive in his posture and demeanor.”

He argues that these statements are reflective of common stereotypes

portraying African-American men as “lazy, shiftless, belligerent, abusive,

and aggressive.” We are mindful that adverse employment actions based

on race and gender stereotypes constitute illegal discrimination. See id.

at 1042. However, in this case the record does not reveal a genuine

issue of material fact to allow a reasonable jury to conclude Mason’s

decision to terminate him was based on improper stereotypes about

African-American males.

After reviewing the Stolar report, which, as discussed above, was

highly publicized and highly critical of Jones’s management of the

incident, Mason issued Jones a letter terminating him based on a “loss of

confidence and trust in [him] based upon [his] failure to perform the

duties and responsibilities of [his] position on behalf of the University of

Iowa in response to the [October] 2007 sexual assault.” All of Mason’s

statements concerning Jones’s termination corroborate the legitimate

nondiscriminatory motivation given in the letter. Further, there is no

evidence that Mason held the allegedly stereotypical views or applied

them to Jones. In making the above statements, Mason was merely

recalling the characterization of Jones’s conduct given to her by one of

the Stolar attorneys conducting the investigation. None of the

statements, which Jones contends evince improper stereotyping, were

ever given as a reason for his termination.10 Finally, Mason also

terminated Marcus Mills, the University’s general counsel, who is

10Itis noteworthy that, throughout this litigation, Jones has contended Mason

terminated him for the purpose of preserving her own position—a motivation distinctly

independent from any form of racial or gender-based animus.

31

Caucasian, based on her assessment of the Stolar report. See Rose-

Maston v. NME Hosp., Inc., 133 F.3d 1104, 1109 n.4 (8th Cir. 1998)

(noting that failure to prove similarly situated employees were treated

differently is fatal under the McDonnell Douglas framework). Thus, it is

undisputable that Jones’s termination was due to Mason’s loss of

confidence in Jones’s professional abilities based on his handling of the

sexual assault incident. The district court’s ruling granting Mason

summary judgment on Jones’s employment discrimination claim is

affirmed.

C. Summary Judgment on Claims Against Stolar. Jones also

appeals the district court’s rulings granting Stolar summary judgment on

his claims against them for defamation and intentional interference with

contractual relationships and prospective business advantages. We

review the district court’s ruling on each claim in turn.

1. Defamation claim against Stolar. The district court did not

consider the elements of Jones’s defamation claims against Stolar

because it found no fact issue on the question of whether Stolar enjoyed

a qualified privilege with respect to the alleged defamatory statements

contained in its report. A public figure11 alleging defamation carries the

burden to show a reasonable jury could find by clear and convincing

evidence that (1) the challenged statements were false and (2) the

statements were made with “actual malice.” Stevens v. Iowa

Newspapers, Inc., 728 N.W.2d 823, 826 (Iowa 2007).

Qualified privilege is an affirmative defense in a defamation action.

Barreca v. Nickolas, 683 N.W.2d 111, 116–17 (Iowa 2004).

11Jones concedes that he is a public figure for the purposes of his defamation

claim.

32

The law affords defendants privileges because [s]ometimes

one is justified in communicating to others, without liability,

defamatory information. . . . The law recognizes certain

situations may arise in which a person, in order to protect

his own interests or the interests of others, must make

statements about another which are indeed libelous. When

this happens, the statement is said to be privileged, which

simply means no liability attaches to its publication.

Id. at 116–17 (citation and internal quotation marks omitted). We have

recognized that “ ‘[t]he doctrine of privileged communication is based

upon the principle of good public policy.’ ” Id. at 117 (quoting Mills v.

Denny, 245 Iowa 584, 587, 63 N.W.2d 222, 224 (1954)). “Instances

abound where the individual must surrender his [or her] personal rights

and suffer loss for the benefit of the common welfare.” Mills, 245 Iowa at

587, 63 N.W.2d at 224.

In order to demonstrate the existence of qualified privilege in an

action for defamation a defendant must prove:

(1) the statement was made in good faith, (2) the defendant

had an interest to uphold, (3) the scope of the statement was

limited to the identified interest, and (4) the statement was

published on a proper occasion, in a proper manner, and to

proper parties only.

Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 84 (Iowa 2001). The

privilege may be lost “if the speaker acts with actual malice, or exceeds or

abuses the privilege through, for example, excessive publication or

through publication to persons other than those who have a legitimate

interest in the subject of the statements.” Id.; see also Spencer v.

Spencer, 479 N.W.2d 293, 297 (Iowa 1991) (“The qualified privilege by its

very nature does not allow widespread or unrestricted communication.”).

For the purpose of establishing actual malice to preclude a finding of

qualified privilege, a plaintiff must show the statement was made with

knowing or reckless disregard for whether it was true or false. Barreca,

683 N.W.2d at 121. As Jones correctly notes, it is generally the district

33

court’s responsibility to determine whether a defendant’s statement is

qualifiedly privileged, and a jury question as to whether the privilege was

abused. See id. at 118.

Jones argues that several statements in the Stolar report sharply

criticizing him for mishandling the sexual assault were defamatory.

Specifically, Jones takes issue with the repeated assertion that he had

“failed” in his job responsibilities. He contends “Stolar’s words singling

[him] out . . . as having ‘failed’ or as a ‘failure’ nine times . . . were

capable of defamatory meaning.” Jones alleges that qualified privilege

does not apply to the statements at issue because the statements were

published with actual malice, were unnecessary to achieve the privileged

interest, and because Stolar abused the privilege by publishing

excessively.

Jones’s claim that Stolar’s reported comments concerning his

conduct were made with actual malice suffers from an absence of

evidence. Jones only attempts to demonstrate the falsity of the

statements at issue, several of which are opinions not subject to a factual

determination. See Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 774

(Iowa 2006) (explaining that no cause of action for defamation shall lie

when the statements at issue are opinions and are not objectively

verifiable). Even if, for the sake of argument, we assume some of the

statements at issue are false, Jones has not identified a single piece of

record evidence suggesting that Stolar acted with reckless disregard for

the truth at any stage of its investigation or in the preparation of its

report. To the contrary, the record demonstrates Stolar’s conclusions

were based on a thorough and deliberate investigation. Cf. Barreca, 683

N.W.2d at 123 (finding a jury question on the issue of actual malice

where statements were published based on “an anonymous and

34

uncorroborated tip”). Thus, the record fails to show there is a genuine

issue of fact on the question of actual malice.

Nor does the record contain a genuine fact issue on the question of

whether the scope of Stolar’s statements exceeded the privileged interest.

Stolar was hired by the Regents to assist in “conduct[ing] a review of all

actions taken by University personnel in response to the alleged assault”

and “[a]ssess[ing] whether the University’s policies and procedures were

followed.” The retainer agreement tasked Stolar with “review[ing] past

investigations and recommendations of sexually related complaints and

incidents at the University.” Thus, providing assessments on the

management of the sexual assault investigation by University personnel,

including Jones, was a privileged interest established by the retainer

agreement with Stolar. All of the statements at issue go to the very heart

of the assignment with which Stolar was tasked. There is no plausible

dispute as to whether Stolar exceeded the scope of the privilege by

issuing a report containing statements critical of Jones’s handling of the

alleged assault. See Bitner v. Ottumwa Cmty. Sch. Dist., 549 N.W.2d 295,

303 (Iowa 1996) (affirming summary judgment for CPA firm because

qualified privilege applied to allegedly defamatory statements contained

in audit prepared on behalf of a school board).

Jones’s claim of excessive publication is based on record evidence

demonstrating that Stolar knew the Regents would make its report

public. However, this fact is of small import in our analysis. Stolar

submitted its report to the Regents and its advisory committee, the

individuals who had retained Stolar to prepare the report. The Regents

unquestionably had a legitimate interest in the statements contained

therein, and it was the Regents’s decision to make the report public.

Without some allegation that Stolar played a role in the decision to

35

publish the report to the public, Jones has not properly alleged a claim of

excessive publication. See Robinson v. Home Fire & Marine Ins. Co., 244

Iowa 1084, 1095, 59 N.W.2d 776, 783 (1953) (“ ‘If a defendant

deliberately adopts a method of communication that gives unnecessary

publicity to defamatory statements, he cannot successfully invoke the

defense of qualified privilege.’ ” (quoting Bereman v. Power Publ’g Co., 27

P.2d 749, 751 (Colo. 1933))). Accordingly, we are unable to identify the

existence of any jury question on the issue of qualified privilege under

the facts alleged and the ruling granting Stolar summary judgment on

Jones’s defamation claim is affirmed.

2. Intentional interference claims against Stolar. Finally, Jones

appeals the district court’s rulings on his claims of intentional

interference with contractual relationships and prospective business

advantages against Stolar.

To recover for intentional interference with an existing

contract, a plaintiff must show: “(1) plaintiff had a contract

with a third-party; (2) defendant knew of the contract;

(3) defendant intentionally and improperly interfered with

the contract; (4) the interference caused the third-party not

to perform, or made performance more burdensome or

expensive; and (5) damage to the plaintiff resulted.”

Kern v. Palmer Coll. of Chiropractic, 757 N.W.2d 651, 662 (Iowa 2008)

(quoting Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 243 (Iowa

2006)).

The tort of intentional interference with prospective

business advantage imposes liability on a person who

intentionally and improperly interferes with the claimant’s

business expectancies “whether the interference consists of

(a) inducing or otherwise causing a third person not to enter

into or continue the prospective relation or (b) preventing the

other from acquiring or continuing the prospective relation.”

Gordon v. Noel, 356 N.W.2d 559, 563 (Iowa 1984) (quoting Restatement

(Second) of Torts § 766B (1979).

36

Jones contends Stolar was aware that after he retired from the

University he planned to form a higher education consulting business.12

Maintaining his position that Stolar published falsehoods in its report, he

contends Stolar improperly interfered with his employment contract with

the University and with his prospective business plans. Both torts

alleged by Jones, intentional interference with contract and intentional

interference with prospective business relations, require that he prove

that Stolar “intentionally and improperly interfered with the relationship

at issue.” Compiano v. Hawkeye Bank & Trust of Des Moines, 588

N.W.2d 462, 464 (Iowa 1999). The difference between the two torts,

however, is that to recover for interference with prospective business

relations, Jones must prove that Stolar “acted with the sole or

predominant purpose to injure or financially destroy the plaintiff.” Id.

For the same reasons we found that the statements at issue were within

the scope of a privileged interest, we conclude Jones has not generated a

fact issue on the threshold question of intentional and improper

interference under either circumstance. The district court was correct in

granting summary judgment to Stolar on these claims.

IV. Disposition.

We affirm the district court’s ruling on the motion to compel

discovery and affirm the district court’s grant of summary judgment in

favor of the defendants.

AFFIRMED.

12Stolar disputes this fact.