Elizabeth Chacey Deboom Vs. Raining Rose, Inc., Chart Acquisition Corp., Charles Hammond, And Estate Of Art Christoffersen ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 06–1063
Filed August 28, 2009
ELIZABETH CHACEY DEBOOM,
Appellant,
vs.
RAINING ROSE, INC., CHART ACQUISITION CORP., CHARLES
HAMMOND, and ESTATE OF ART CHRISTOFFERSEN,
Appellees.
________________________________________________________________________
Appeal from the Iowa District Court for Linn County, Thomas M.
Horan, Judge.
Plaintiff challenges jury instructions in an action against her
employer alleging sex and pregnancy discrimination. REVERSED AND
REMANDED WITH DIRECTIONS.
Beth A. Townsend of Townsend Law Office, P.L.C., West Des
Moines, for appellant.
Patrick M. Roby and Robert M. Hogg of Elderkin & Pirnie, P.L.C.,
Cedar Rapids, for appellees.
2
STREIT, Justice.
Elizabeth DeBoom was fired from her job at Raining Rose, Inc.
shortly after returning from maternity leave. She filed suit against the
company alleging she was impermissibly fired because of her sex and
pregnancy. After a defense verdict, DeBoom appealed alleging several
deficiencies in the jury instructions. We hold the district court should
have instructed the jury it could infer discrimination if it believed Raining
Rose’s proffered reasons for terminating DeBoom were a “pretext.”
Further, DeBoom was prejudiced by an erroneous definition of
“determining factor” in the jury instructions. We remand for a new trial.
I. Background Facts and Prior Proceedings.
Elizabeth DeBoom began working for Raining Rose in May 2003 as
the company’s marketing director. 1 A few weeks later, DeBoom informed
Charles Hammond, the company’s president, she was pregnant.
Hammond asked DeBoom if she planned to return to work after the baby
was born, and she said “yes.” When Art Christoffersen, the chairman of
the board of directors, learned of the pregnancy, he asked DeBoom if she
was going to “be like all those other women who find it’s this life-altering
experience and decide to stay home.” DeBoom assured him she was
committed to the company. After being on bed rest for approximately
two weeks, DeBoom gave birth to a son on January 12, 2004.
Prior to her maternity leave, DeBoom received favorable feedback
regarding her work from her employers, especially Hammond. Hammond
visited DeBoom after the baby was born and told her the company was
eager to have her back.
1Raining Rose manufactures natural body care products in Cedar Rapids, Iowa.
During DeBoom’s tenure, the company employed between approximately fifteen and
thirty employees.
3
DeBoom returned to work part-time on March 11, 2004. She
testified she had a massive list of projects to be completed. Hammond
and Christoffersen gave DeBoom a work evaluation she missed due to
her maternity leave. They told her she was doing a great job and gave
her a 15% raise. DeBoom began working full-time on April 12. She was
terminated on April 20. Hammond told DeBoom her position was being
eliminated and she was no longer a good fit for the company. Hammond
told DeBoom they were very frustrated she had not completed a major
project which she began before maternity leave. He also expressed
dismay she had sent “Butt Balm” to a radio deejay for a promotion
because Raining Rose did not own the name and had no plans to market
the product. According to DeBoom, Hammond told her she “wasn’t
catching up fast enough from the maternity leave and that they had
begun to doubt whether [she] was still committed to [the] job.”
Hammond denied making that statement. Hammond offered DeBoom
the opportunity to do free-lance work for the company, but she declined.
DeBoom filed a claim with the Iowa Civil Rights Commission
alleging Raining Rose fired her because of her sex and pregnancy. After
the Commission issued a right-to-sue letter, DeBoom filed this lawsuit in
the district court. 2 After both parties presented their evidence at trial,
Raining Rose made a motion for a directed verdict, asserting DeBoom
was not a member of a protected class (i.e., pregnant) at the time of her
termination, and she did not present competent evidence to support an
inference of discrimination or to support that the reasons given by
Raining Rose for terminating her employment were pretext for
discrimination. The motion was denied. The jury returned a verdict in
2DeBoom filed suit against several defendants. For simplicity, we will refer to
the defendants collectively as “Raining Rose.”
4
favor of Raining Rose. DeBoom filed a motion for a new trial alleging the
district court made several errors with respect to the jury instructions.
After the motion was denied, DeBoom appealed on the same grounds.
Raining Rose responded the instructions were proper but even if they
contained errors, the judgment for Raining Rose should be upheld
because the district court should have granted the motion for directed
verdict.
II. Scope of Review.
“We review a trial court’s ruling on a motion for directed verdict for
correction of errors of law.” Summy v. City of Des Moines, 708 N.W.2d
333, 343 (Iowa 2006). A directed verdict is required “only if there was no
substantial evidence to support the elements of the plaintiff's claim.”
Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 472 (Iowa 2005).
Evidence is substantial when “reasonable minds would accept the
evidence as adequate to reach the same findings.” Easton v. Howard,
751 N.W.2d 1, 5 (Iowa 2008). “Where reasonable minds could differ on
an issue, directed verdict is improper and the case must go to the jury.”
Stover v. Lakeland Square Owners Ass’n, 434 N.W.2d 866, 873 (Iowa
1989).
“We review alleged errors in jury instructions for correction of
errors at law.” Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa
2006). It is error for a court to refuse to give a requested instruction
where it “correctly states the law, has application to the case, and is not
stated elsewhere in the instructions.” Vaughan v. Must, Inc., 542 N.W.2d
533, 539 (Iowa 1996). Any error in the instructions given “does not merit
reversal unless it results in prejudice.” Wells v. Enter. Rent-A-Car
Midwest, 690 N.W.2d 33, 36 (Iowa 2004). Jury instructions should be
considered “in their entirety.” Anderson v. Webster City Cmty. Sch. Dist.,
5
620 N.W.2d 263, 265 (Iowa 2000). Reversal is warranted if the
instructions have misled the jury. Id. Prejudicial error occurs when the
district court “materially misstates the law.” Id.III. Merits.
Under the Iowa Civil Rights Act of 1965, it is an “unfair or
discriminatory practice” to discharge an employee “because of . . . sex.”
Iowa Code § 216.6(1)(a) (2003). Similarly, it is unlawful for an employer
to terminate the employment of a woman disabled by pregnancy
“because of” her pregnancy. Id. § 216.6(2)(d). “[T]he legislature’s
purpose in banning employment discrimination based on sex was to
prohibit conduct which, had the victim been a member of the opposite
sex, would not have otherwise occurred.” Sommers v. Iowa Civil Rights
Comm’n, 337 N.W.2d 470, 474 (Iowa 1983).
This case was tried shortly after we held plaintiffs seeking damages
under the Iowa Civil Rights Act were entitled to a jury trial. See McElroy
v. State, 703 N.W.2d 385, 394–95 (Iowa 2005). On appeal, DeBoom
alleges the district court made four errors with respect to jury
instructions. First, she contends the district court erred by refusing to
give a “pretext” instruction, i.e., an instruction stating the jury may infer
discrimination if it does not believe the employer’s proffered reasons for
the termination. Second, she claims the district court erred by refusing
to give her requested instruction on inconsistent testimony. Third,
DeBoom argues the instruction providing the elements of her
discrimination claim impermissibly added unnecessary elements,
including damages, to her burden of proof. And finally, she claims the
instructions that defined “determining factor” were inconsistent and
increased her burden of proof.
6
Raining Rose argues the district court’s instructions were proper.
Alternatively, the company claims DeBoom was not prejudiced even if the
jury instructions were erroneous because Raining Rose was entitled to a
directed verdict for two reasons: 1) DeBoom was not a member of the
protected class (i.e., pregnant 3) when she was terminated and 2) she did
not present substantial evidence to support an inference of
discrimination or to rebut the legitimate non-discriminatory explanation
put forth by Raining Rose.
A. Pregnancy Discrimination.
The Iowa Civil Rights Act prevents an employer from firing an
employee because of her sex or pregnancy. The general provisions
provide “[i]t shall be an unfair or discriminatory practice for any . . .
[p]erson . . . to discharge any employee . . . because of . . . sex . . . .”
Iowa Code § 216.6(1). Section 216.6(2)(d) deals with pregnancy directly:
“An employer shall not terminate the employment of a person disabled by
pregnancy because of the employee’s pregnancy.” Raining Rose contends
DeBoom could not qualify for protection under Iowa Code section 216.6
because she was not pregnant at the time of her termination. Raining
Rose also contends the district court should not have submitted
DeBoom’s case to the jury because she did not present substantial
evidence to support a claim of discrimination.
To establish a prima facie case of pregnancy discrimination, the
plaintiff must demonstrate “(1) she was pregnant; (2) she was qualified
for her position; and (3) her termination occurred under circumstances
3The record seems to indicate that all parties considered DeBoom’s claim of
discrimination based on her “sex and pregnancy” as a single claim. The jury
instructions state “you should interpret the word ‘sex’ to include not only [DeBoom’s]
gender, but also her pregnancy, the fact that she gave birth to a child, and conditions
related to her pregnancy.” As DeBoom, Raining Rose, and the district court only
addressed discrimination based on pregnancy, we do so as well.
7
giving rise to an inference of discrimination.” Smidt v. Porter, 695 N.W.2d
9, 14 (Iowa 2005). The burden then shifts to the defendant “to offer a
legitimate nondiscriminatory reason for the termination.” Id. at 15. “If
the employer offers a legitimate nondiscriminatory reason, the plaintiff
must show the employer’s reason was pretextual and that unlawful
discrimination was the real reason for the termination.” Id.Raining Rose asserts DeBoom does not have a valid pregnancy
claim because her status as a “new mom” is not part of the protected
class of pregnant women. See Piantanida v. Wyman Ctr., Inc., 116 F.3d
340, 342 (8th Cir. 1997) (“[Employee’s] claim of discrimination based on
[employee’s] status as a new parent is not cognizable under the [federal
Pregnancy Discrimination Act].”). While we agree the Iowa statute does
not recognize a discrimination claim based on DeBoom’s status as a new
parent, we think there is substantial evidence linking DeBoom’s
termination to her pregnancy.
Although we have not yet determined whether the prohibition
against termination of “a person disabled by pregnancy because of the
employee’s pregnancy” under Iowa Code section 216.6(2)(d) includes a
woman who has recently given birth or taken maternity leave, federal
courts have interpreted the federal Pregnancy Discrimination Act (PDA)
as applying to women who are not pregnant and to women who have
taken authorized maternity leave. See, e.g., Int’l Union, United Auto.,
Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc.,
499 U.S. 187, 206, 111 S. Ct. 1196, 1207, 113 L. Ed. 2d 158, 178
(1991); Smith v. F.W. Morse & Co., 76 F.3d 413, 424 (1st Cir. 1996).
When interpreting discrimination claims under Iowa Code chapter 216,
we turn to federal law, including Title VII of the United States Civil Rights
Act and the Americans with Disabilities Act. See Bd. of Supervisors v.
8
Iowa Civil Rights Comm’n, 584 N.W.2d 252, 256 (Iowa 1998) (“In deciding
gender discrimination disputes, we adhere to the Title VII analytical
framework . . . .”); Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d 324,
329 (Iowa 1998) (“In considering a disability discrimination claim
brought under Iowa Code chapter 216, we look to the ADA and cases
interpreting its language.”). However, we must be mindful not to
substitute “the language of the federal statutes for the clear words of the
Iowa Civil Rights Act.” Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa
1989).
The federal pregnancy discrimination act states:
It shall be an unlawful employment practice for an
employer—
(1) to fail or refuse to hire or to discharge any individual,
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(a) (2006). The statute defines “because of sex” as
“includ[ing], but are not limited to, because of or on the basis of
pregnancy, childbirth, or related medical conditions.” 42 U.S.C.
§ 2000e(k). The United States Supreme Court has interpreted the
statute as applying to women who may become pregnant. Int’l Union,
499 U.S. at 206, 111 S. Ct. at 1207, 113 L. Ed. 2d at 178 (“We conclude
that the language of [the statute], as well as the legislative history and
case law, prohibit an employer from discriminating against a woman
because of her capacity to become pregnant . . . .”).
In line with the federal statute, several circuit courts have
determined an adverse employment action motivated by a pregnancy
related condition violates the PDA even though the employee was not
pregnant at the time of the discriminatory act. Hall v. Nalco Co., 534
9
F.3d 644, 649 (7th Cir. 2008) (holding infertility is a pregnancy related
condition where plaintiff claimed she was terminated because she took
time off work to undergo in vitro fertilization); Doe v. C.A.R.S. Prot. Plus,
Inc., 527 F.3d 358, 369 (3d Cir. 2008) (holding woman who alleged she
was terminated for having an abortion stated a prima facie case for
discrimination); Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d
466, 470 (6th Cir. 2005) (holding federal statute covers situation where
employer refused to rehire employee because she might become pregnant
again); see also Nelson v. Wittern Group, Inc., 140 F. Supp. 2d 1001, 1007
(S.D. Iowa 2001) (holding woman who claimed she was terminated after
giving birth because she became pregnant was part of the protected
class).
After reviewing interpretations of the federal PDA, we interpret the
phrase “a person disabled by pregnancy because of the employee’s
pregnancy” broadly to include women affected by pregnancy, childbirth,
and other related conditions. Iowa Code § 216.6(2)(d). Such a broad
interpretation is necessary to effectuate the purpose of the statute. See
Int’l Union, 499 U.S. at 205, 111 S. Ct. at 1206, 113 L. Ed. 2d at 177(stating legislative history reveals purpose of federal PDA is “to protect
female workers from being treated differently from other employees
simply because of their capacity to bear children”). However, we do not
hold Iowa Code section 216.6(2) prohibits an employer from terminating
an employee based on the employee’s decision to prioritize family over
work. Such a decision can be made by men as well as women and,
therefore, is not based on the unique capacity of women to bear children
so as to fall within the scope of Iowa’s statute. See Piantanida, 116 F.3d
at 342.
10
Here, DeBoom was allegedly terminated because she could not
catch up fast enough after she returned from maternity leave. DeBoom
was terminated seven business days after she returned to Raining Rose
full time. Timing alone is not sufficient to demonstrate the employer’s
reason for terminating the employee was pretextual. Cf. Jasper v. H.
Nizam, Inc., 764 N.W.2d 751, 768 (Iowa 2009) (“We have said that the
timing between the protected activity and the discharge is insufficient, by
itself, to support the causation element of the tort [of wrongful
discharge].”); see also Groves v. Cost Planning & Mgmt. Int’l, Inc., 372
F.3d 1008, 1010 (8th Cir. 2004) (“[T]iming alone does not sufficiently
undermine [an employer’s legitimate] justifications [for termination] to
create a genuine issue of fact on pretext.”). However, a trier of fact may
find timing to be “particularly suspicious,” Smidt, 695 N.W.2d at 15, and
DeBoom did provide other evidence linking her termination to her
pregnancy.
DeBoom presented evidence to support an inference of
discrimination and rebut the legitimate nondiscriminatory reason for
termination that Raining Rose put forth. First, DeBoom presented
evidence of the circumstances of her termination. Raining Rose admitted
it made the decision to terminate DeBoom sometime between the day she
returned to work part-time and the day she was fired. DeBoom may
fairly argue the termination decision was made before any of her alleged
performance problems. Additionally, DeBoom provided evidence she was
never notified of or disciplined for substandard performance prior to her
termination whereas other employees received a warning before
termination. See Smidt, 695 N.W.2d at 15–16 (holding “a trier of fact
could choose not to believe [the employer’s] after-the-fact justifications”
11
where the employer failed to produce documentation of poor
performance).
Second, DeBoom presented statements from which a jury could
infer animus towards pregnant women. DeBoom testified Christoffersen
repeatedly asked her if she would be returning to work after giving birth
and asked whether she was “going to be like all those other women who
find it’s this life-altering experience and decide to stay home.” A jury
could infer that DeBoom’s employer assumed she would return to the
company without the same commitment to her work as before and
therefore discriminated against her once she returned from maternity
leave.
Third, DeBoom asserts Raining Rose created a situation in which
she was doomed to fail after she returned from maternity leave. The
record indicates after DeBoom returned from her maternity leave, she
was working on a multitude of projects that had piled up in her absence
along with new assignments. Prior to taking maternity leave, DeBoom
typically worked sixty-hour weeks. While she was on maternity leave,
Raining Rose hired a temporary replacement to work ten to fifteen hours
a week. The replacement did not work on all of the projects assigned to
DeBoom, but rather simply handled some items as they came up on a
daily basis and focused on one particular project. When DeBoom
returned to work part-time two months after giving birth, she was
completely overwhelmed with work that had piled up in her absence.
She was given a massive list of projects demanding her attention.
DeBoom estimated there were forty projects, some of which were new
and some of which were ongoing projects DeBoom had worked on before
her maternity leave. Additionally, when DeBoom returned to work full
time in April, she was assigned the task of spending three days a week
12
doing door-to-door sales. At the meeting where DeBoom was fired,
DeBoom testified Hammond told her “he felt that [she] wasn’t catching
up fast enough from the maternity leave and that they had begun to
doubt whether [she] was still committed to [her] job.”
It is a factual question whether Raining Rose terminated DeBoom
for permissible reasons such as she was no longer working an acceptable
amount of hours or performing as well as she had prior to giving birth (a
choice to prioritize family over work) or whether Raining Rose terminated
DeBoom for the impermissible reason that she took maternity leave.
DeBoom presented substantial evidence that her pregnancy and
maternity leave were a motivating factor 4 in her termination. As
“reasonable minds could differ on [the] issue” of whether DeBoom was
terminated because of her pregnancy, the district court rightly
determined the case should go to a jury. Stover, 434 N.W.2d at 873.
B. Pretext. DeBoom complains the district court erred by
refusing to instruct the jury on “pretext.” A pretext instruction states a
jury may infer intentional discrimination if it disbelieves the employer’s
asserted reasons for terminating the employee. The district court denied
DeBoom’s request for the following jury instruction:
You may find that plaintiff’s sex was a motivating
factor in defendant’s decision to terminate if it has been
proved by the preponderance of the evidence that
defendant’s stated reasons for its decision are not the real
reason, but are a pretext to hide sex discrimination.
DeBoom’s requested pretext instruction is a correct statement of
law. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143,
120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000) (stating “the
4As discussed infra, the term “a motivating factor” is preferable to “a determining
factor” in order to eliminate confusion between tortious discharge and discrimination
claims.
13
plaintiff may attempt to establish that he was the victim of intentional
discrimination ‘by showing that the employer’s proffered explanation is
unworthy of credence’ ” (quoting Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 207, 217 (1981)));
Smidt, 695 N.W.2d at 16 (stating “[i]n appropriate circumstances, the
trier of fact can reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory purpose”
(quoting Reeves, 530 U.S. at 147, 120 S. Ct. at 2108, 147 L. Ed. 2d at
120)). DeBoom relies on several federal circuit court opinions that
require a pretext instruction be given when requested in a discrimination
case. See Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241
(10th Cir. 2002); Ratliff v. City of Gainesville, 256 F.3d 355, 360 (5th Cir.
2001); Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998);
Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994). Because the
Iowa Civil Rights Act was modeled after Title VII of the United States Civil
Rights Act, we turn to federal law for guidance in evaluating the Iowa
Civil Rights Act. Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999).
The cases upon which DeBoom relies have all held a pretext instruction
is required in order to ensure the jury understands the plaintiff need not
present an admission or other affirmative evidence of the defendant’s
intent in order to prove discrimination.
Raining Rose counters there are several circuit courts which have
held a pretext instruction is permissible but not required. See Conroy v.
Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233–34 (11th Cir.
2004); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994); see also
Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 790 n.9 (8th Cir. 2001)
(expressing doubt it would ever be reversible error for failure to give
pretext instruction); Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir.
14
2000) (same). Some courts have held a general credibility instruction
(which the district court provided here) is sufficient. See, e.g., Conroy,
375 F.3d at 1235. Moreover, Raining Rose asserts DeBoom was free to
argue in her closing argument to the jury that its stated reasons for
terminating her were merely pretextual and an effort to hide its alleged
discriminatory motive.
We find the courts requiring a pretext instruction more convincing.
A pretext instruction is necessary because discrimination cases are
difficult to prove. The Supreme Court has acknowledged the issue before
the fact finder in a discrimination case “ ‘is both sensitive and difficult,’
and ‘that [t]here will seldom be “eyewitness” testimony as to the
employer’s mental processes.’ ” Reeves, 530 U.S. at 141, 120 S. Ct. at
2105, 147 L. Ed. 2d at 116 (quoting U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 1482, 75 L. Ed. 2d 403, 411
(1983)); see also La Montagne v. Am. Convenience Prods., Inc., 750 F.2d
1405, 1410 (7th Cir. 1984) (stating “an employer who knowingly
discriminates . . . may leave no written records revealing the forbidden
motive and may communicate it orally to no one”). Without such an
instruction, a jury may well assume it cannot find in the plaintiff’s favor
without direct evidence of discrimination. Townsend, 294 F.3d at 1241.
Thus, we hold a pretext instruction “is required where, as here, a rational
finder of fact could reasonably find the defendant’s explanation false and
could ‘infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.’ ” Id. (quoting Reeves,
530 U.S. at 147, 120 S. Ct. at 2108, 147 L. Ed. 2d at 120).
Raining Rose argues even if a pretext instruction should have been
given, DeBoom was not prejudiced because she failed to present
substantial evidence to support her claims for either sex or pregnancy
15
discrimination. See Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568,
577–78 (5th Cir. 2004) (holding refusal to give pretext instruction was
error but not prejudicial). However, once the defendant offers legitimate
non-discriminatory reasons for terminating the plaintiff, the burden
shifts to the plaintiff to demonstrate the employer’s reasons were
pretextual. Smidt, 695 N.W.2d at 14–15. If a plaintiff then presents
evidence of pretext, failure to provide a pretext instruction will result in
prejudice. See Townsend, 294 F.3d at 1242–43. Here, as discussed
above, DeBoom presented sufficient evidence of pretext to reach the jury.
Because our case law shifts the burden to the plaintiff to demonstrate
pretext, and because DeBoom presented substantial evidence of pretext,
she was entitled to a jury instruction on pretext. Refusal to instruct the
jury on pretext prejudiced DeBoom.
C. Inconsistent Statements. DeBoom also argues the district
court should have given her proposed instructions on inconsistent
statements by a non-party and a party opponent. Both DeBoom and
Raining Rose requested the same instructions on inconsistent
statements, 5 yet the district court refused to give such instructions,
instead only instructing the jury on the credibility of witnesses. 6 As
DeBoom’s request for instructions on inconsistent statements was
legitimate considering the facts and circumstances of this case, the
district court should have instructed the jury on inconsistent statements.
See Vaughan, 542 N.W.2d at 539 (“As long as a requested instruction
5Both DeBoom and Raining Rose requested Iowa Civil Jury Instructions 100.13,
Contradictory Statement – Non-Party – Witness Not Under Oath; 100.14, Contradictory
Statements, Non-Party, Witness Under Oath; and 100.15, Statements By A Party
Opponent. At trial, the judge asked whether Raining Rose thought the proposed
instructions were necessary, and Raining Rose said it did not care either way.
6Instruction 6 is based on Iowa Civil Jury Instruction 100.9, Credibility Of
Witnesses.
16
correctly states the law, has application to the case, and is not stated
elsewhere in the instructions, the court must give the requested
instruction.”). As we are reversing for other reasons, we need not
determine whether the district court’s error would require reversal.
D. Marshalling Instruction. DeBoom contends the trial court
improperly instructed the jury. DeBoom argues the district court should
have used the Eighth Circuit Model Civil Jury Instruction 5.01 7 to set
out the elements of her cause of action instead of modifying Iowa Civil
Jury Instruction 3100.1, Tortious Discharge Against Public Policy -
Essentials for Recovery. DeBoom contends modifying the instruction for
tortious discharge against public policy instead of borrowing the Eighth
Circuit’s sex discrimination instructions improperly added several
elements to her burden of proof. The district court submitted the
following jury instruction:
To prove discrimination based on her sex and her
pregnancy, Plaintiff Elizabeth DeBoom must prove all of the
following propositions:
1. Plaintiff Elizabeth DeBoom was an employee of
Raining Rose, Inc. . . . .
7DeBoom’s requested instruction based on Eighth Circuit Model Civil Jury
Instruction 5.01 stated:
To prove sex discrimination, Plaintiff must prove all of the
following elements:
1. Defendants discharged Plaintiff; and
2. Plaintiff’s sex was a motivating factor in their actions.
If either of the above elements has not been proved by the
preponderance of the evidence, your verdict must be for defendant and
you need not proceed further in considering this claim. You may find
that plaintiff’s sex was a motivating factor in defendant’s decision if it
has been proved by the preponderance of the evidence that defendants’
stated reasons for its decision are a pretext to hide sex discrimination.
17
2. Defendants Raining Rose, Inc. . . . discharged
Plaintiff Elizabeth DeBoom from employment.
3. Plaintiff Elizabeth DeBoom’s sex and pregnancy
was a determining factor in Defendant[] Raining Rose, Inc.[’s]
. . . decision to discharge Plaintiff Elizabeth DeBoom.
4. The discharge was a proximate cause of damage to
Plaintiff Elizabeth DeBoom.
5. The nature and extent of the damage.
If the Plaintiff has failed to prove any of these
propositions, the Plaintiff is not entitled to damages. If the
Plaintiff has proved all of these propositions, the Plaintiff is
entitled to damages in some amount.
1. Damages. DeBoom argues this instruction was an improper
statement of the law because it added elements to a discrimination claim
that neither the Iowa Civil Rights Act nor case law require. Specifically,
she objects to having the burden to prove damages and proximate cause.
In her petition, DeBoom sought monetary damages, including attorneys’
fees, as well as “other relief as may be just in the circumstances and
consistent with the purpose of the Iowa Civil Rights Act.”
If the only relief sought by DeBoom was the recovery of monetary
damages, the court’s marshalling instruction may have been appropriate.
However, in the context of the equitable relief, the court’s instruction
added unnecessary elements to DeBoom’s cause of action. In the
panoply of relief sought here, the marshalling instruction did not serve
these ends well. If discrimination is proven, the district court may grant
any relief authorized by Iowa Code sections 216.15(8), including granting
an injunction; ordering the rehiring, reinstatement or upgrading of an
employee; and awarding damages caused by the discrimination. Iowa
Code § 216.16(5). “[D]amages shall include but are not limited to actual
damages, court costs and reasonable attorney fees.” Id. § 216.15(8)(a)(8);
see Greenland v. Fairtron Corp., 500 N.W.2d 36, 39 n.6 (Iowa 1993)
18
(stating employee claiming sex discrimination may recover emotional
distress damages without a showing of outrageous conduct). The jury
should have been instructed to consider damages only in the event
DeBoom proved her sex or pregnancy was a motivating factor in Raining
Rose’s decision to terminate her employment. Creating separate
instructions for discrimination and damages allows a plaintiff to seek
equitable relief and attorney fees in the event the jury found she was
discriminated against but failed to prove actual damages.
2. Motivating factor v. determining factor. The main difference
between the jury instruction provided by the court (a modified version of
the tortious discharge against public policy instruction) and the Eighth
Circuit’s model instruction is that the plaintiff must prove her sex or
pregnancy was a determining factor, rather than a motivating factor, in
her discharge. Although DeBoom concedes the substitution of
“determining” for “motivating” alone would not, in itself, have been error,
she argues the definition of “determining factor” in Instruction 15
increased her burden of proof.
In the jury instructions, the district court defined “determining
factor” two different ways. In Instruction 14, “Plaintiff’s pregnancy was a
‘determining factor’ if that factor played a part in the Defendant’s later
actions towards Plaintiff. However, Plaintiff’s pregnancy need not have
been the only reason for Defendant’s actions.” (Emphasis added.) This
instruction was derived from the Eighth Circuit’s Model Civil Instruction
5.96, 8 the only difference being the substitution of the word
8DeBoom’s requested instruction based on Eighth Circuit Model Civil Instruction
5.96 stated:
Definition of Motivating Factor. As used in these Instructions, Plaintiff’s
pregnancy was a “motivating factor” if that factor played a part in the
Defendant’s later actions toward Plaintiff. However, Plaintiff’s pregnancy
need not have been the only reason for Defendant’s actions.
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“determining” for “motivating.” The subsequent instruction, number 15,
reads: “A determining factor need not be the main reason behind the
decision. It need only be the reason which tips the scales decisively one
way or the other.” (Emphasis added.) This instruction is taken from
Iowa Civil Jury Instruction 3100.3, Tortious Discharge Against Public
Policy - Determining Factor.
The definition in Instruction 15 not only conflicts with Instruction
14, which likely confused the jury, but also imposes on DeBoom a higher
burden of proof than is required in discrimination cases. A factor that
“played a part” is quantitatively different from a factor that “tips the
scales decisively one way or the other.” Proving her pregnancy was a
factor that tipped the scales requires a much higher burden of proof than
proving her pregnancy was a factor that played a part in her termination.
This higher burden is not required by either the Iowa Civil Rights
Act or case law. Iowa Code § 216.6(1)(a), (2)(d); Smidt, 695 N.W.2d at 14.
Instruction No. 15, defining “determining factor” as “tips the scales
decisively,” is based on Iowa Civil Jury Instruction 3100.3 and tortious
discharge case law. See Teachout v. Forest City Cmty. Sch. Dist., 584
N.W.2d 296, 301–02 (Iowa 1998). In Teachout, we stated “[a] factor is
determinative if it is the reason that ‘tips the scales decisively one way or
the other,’ even if it is not the predominant reason behind the employer’s
decision.” Id. at 302 (quoting Smith v. Smithway Motor Xpress, Inc., 464
N.W.2d 682, 686 (Iowa 1990)).
In tortious discharge cases, the causation standard is higher than
in discrimination cases. Id. at 301. “The employee’s engagement in
protected conduct must be the determinative factor in the employer’s
decision to take adverse action against the employee.” Id. (emphasis
added). Conversely, in discrimination cases, the plaintiff need only
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demonstrate “termination occurred under circumstances giving rise to an
inference of discrimination” and his or her status as a member of a
protected class was a determining factor in the decision to terminate
employment. Smidt, 695 N.W.2d at 14–16; Sievers v. Iowa Mut. Ins. Co.,
581 N.W.2d 633, 639 (Iowa 1998); Vaughan, 542 N.W.2d at 538.
Instruction 14 best corresponds with the burden of proof required in
discrimination cases, whereas Instruction 15 accurately states the
burden in tortious-discharge-against-public-policy cases. Not only does
Instruction 15 misstate DeBoom’s burden of proof, but it is likely that
using both of these instructions confused the jury as to what DeBoom
was required to demonstrate. Therefore, we remand for a new trial. See
Anderson, 620 N.W.2d at 268.
The district court should have used DeBoom’s proffered
instructions, which were based on the Eighth Circuit’s Model Civil Jury
Instructions. Although the district court could tweak the definition of “a
determining factor,” it would be easier to use the word “motivating”
instead of “determining” in discrimination cases. Rather than have
competing definitions of substantially the same word (a determining
factor v. the determining factor) in similar areas of the law
(discrimination and tortious discharge), adopting the word “motivating”
in discrimination cases would eliminate the confusion between the
differing burdens of proof in these types of cases.
IV. Conclusion.
We find DeBoom was prejudiced by the jury instructions.
Therefore, she is entitled to a new trial.
REVERSED AND REMANDED WITH DIRECTIONS.
All justices concur except Baker, J., who takes no part.