Hawkins v. Grinnell Regional Medical Center , 929 N.W.2d 261 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 17–1892
Filed June 7, 2019
GREGORY HAWKINS,
Appellee,
vs.
GRINNELL REGIONAL MEDICAL CENTER, DAVID NESS, and DEBRA
NOWACHEK,
Appellants.
Appeal from the Iowa District Court for Poweshiek County, Randy S.
DeGeest, Judge.
An employer and its agents appeal an adverse jury verdict in an
employment discrimination and retaliation case. REVERSED AND
REMANDED.
Randall D. Armentrout, Mary E. Funk, Debra Hulett, and David
Bower of Nyemaster Goode, P.C., Des Moines, for appellants.
Katie Ervin Carlson, Nathan Borland, and Brooke Timmer of
Timmer & Judkins, P.L.L.C., West Des Moines, for appellee.
Thomas M. Boes and Catherine M. Lucas of Bradshaw, Fowler,
Proctor & Fairgrave, P.C., Des Moines, for amicus curiae Iowa Defense
Counsel Association, Iowa Insurance Institute, and Iowa Association of
Business and Industry.
2
Joel E. Fenton, Des Moines, for amicus curiae Iowa Association for
Justice.
3
WIGGINS, Justice.
A terminated employee sued his former employer and the employer’s
agents under the Iowa Civil Rights Act (ICRA), alleging they discriminated
against him because of his age and his disability—i.e., his status as a
cancer patient—and retaliated against him due to his refusal to retire or
quit. The case proceeded to trial, and a jury returned a verdict for the
plaintiff, awarding him backpay and emotional distress damages. The
district court awarded the plaintiff frontpay and attorney fees. The
defendants appealed the verdict, raising various issues. We reverse and
remand for a new trial.
I. Background Facts.
Grinnell Regional Medical Center (GRMC) hired Gregory Hawkins as
a laboratory technologist in 1976 when Hawkins was twenty-two-years
old. In 1985, GRMC promoted Hawkins to laboratory director. As the
laboratory director, Hawkins was accountable for daily operations of
GRMC’s laboratory, histology, and mobile services. Hawkins held this
position until his termination on June 3, 2015. At all times relevant to
this lawsuit, David Ness was GRMC’s vice president of operations and
Hawkins’s direct supervisor and Debra Nowachek was GRMC’s human
resources director.
In November 2013, doctors diagnosed Hawkins with stage III breast
cancer. On December 4, Hawkins underwent a left breast surgical
mastectomy followed by chemotherapy and radiation treatments. During
this time, Hawkins took family and medical leave pursuant to GRMC’s
family and medical leave policy and the Family and Medical Leave Act
(FMLA). On March 19, 2014, while still undergoing weekly chemotherapy
treatments, Hawkins returned to work part-time and used the remainder
of his FMLA leave for partial-day absences through May 17. After he
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exhausted his FMLA allowance, GRMC granted Hawkins extra leave
pursuant to its policy, and Hawkins continued working part-time.
On June 2, Ness, Nowachek, and GRMC’s chief executive officer,
Todd Linden, met with Hawkins, who reported that his doctor instructed
him to remain on a part-time schedule indefinitely. Linden told Hawkins
GRMC needed someone in the laboratory full-time so GRMC would no
longer be able to employ Hawkins as laboratory director. Linden asked
Hawkins to resign within ninety days. Shortly after the meeting, Hawkins
learned he would finish cancer treatments and be able to return to work
full-time by December 2014. Hawkins emailed Ness to share this news,
expressing that he wished to keep his job at GRMC and GRMC should not
force him to resign. Ness forwarded the email to Nowachek and Linden,
commenting, “He’s going to make us term him.”
On June 19, GRMC featured Hawkins in a public advertisement for
chemotherapy services. That same day, Ness and Linden told Hawkins he
had only thirty days left to resign or retire, otherwise GRMC would
terminate him. Hawkins refused to resign or retire. Following this,
GRMC’s board of directors’ executive committee met and decided to give
Hawkins additional recovery time. On July 9, despite the board giving
Hawkins extra recovery time, Ness and Nowachek forced Hawkins to take
an unwanted leave of absence and appointed an interim laboratory
director.
On October 6, Hawkins returned to GRMC full-time as the
laboratory director. Three weeks before his return, on September 16,
Hawkins emailed Ness, Nowachek, and Linden to confirm that he could
return to work without any retaliation. From December 2014 through May
2015, GRMC reported performance issues with Hawkins’s work.
5
On May 13, 2015, Hawkins filed a complaint with the Iowa Civil
Rights Commission, alleging age discrimination, disability discrimination,
and retaliation. On May 22, Ness emailed the GRMC board to discuss
firing Hawkins. On June 3, three weeks after Hawkins filed his civil rights
complaint, GRMC fired Hawkins.
II. Proceedings.
Hawkins filed his ICRA suit against GRMC, Ness, Nowachek, and
Linden in district court on February 4, 2016. 1 He claimed GRMC
discriminated against him because of his age and disability—i.e., his
status as a cancer patient—and retaliated against him for refusing to
resign. GRMC contended it did not terminate Hawkins for a discriminatory
or retaliatory reason but rather because of his poor job performance.
The jury returned a verdict in Hawkins’s favor on all claims against
GRMC and awarded Hawkins $222,009.68 in backpay, $2,000,000 for
past emotional distress, and $2,280,000 for future emotional distress.
On August 8, 2017, GRMC filed a motion for a new trial and
remittitur of damages. On September 5, Hawkins moved for equitable
relief and attorney fees. The district court denied GRMC’s motion, granted
Hawkins’s motion, and awarded Hawkins $241,746 in frontpay through
December 31, 2019, and $615,208 in attorney fees.
GRMC appeals. We will discuss other facts as needed.
III. Issues.
Although GRMC raises five issues on appeal, we need to address
only the evidentiary hearsay challenge because that issue is dispositive.
Nevertheless, we also address the challenge to the same-decision jury
instruction because that issue may reoccur on retrial.
1Hawkins subsequently dismissed Linden as a defendant. For purposes of this
decision, we will refer to all remaining defendants as GRMC.
6
IV. Whether the District Court Erred in Admitting Hearsay.
We generally review challenges to district court decisions to exclude
or admit evidence for an abuse of discretion. State v. Jordan, 663 N.W.2d
877, 879 (Iowa 2003). However, we review challenges to hearsay and other
evidence implicating the interpretation of a rule of evidence for correction
of errors at law. State v. Paredes, 775 N.W.2d 554, 560 (Iowa 2009). We
also apply this standard of correction of errors at law “to determin[e]
whether statements come within an exception to the general prohibition
on hearsay evidence.” Id. Finally, unless the record shows the contrary,
we presume improperly admitted hearsay evidence is prejudicial to the
nonoffering party. State v. Elliott, 806 N.W.2d 660, 669 (Iowa 2011).
“ ‘Hearsay’ means a statement that: (1) The declarant does not make
while testifying at the current trial or hearing; and (2) A party offers into
evidence to prove the truth of the matter asserted in the statement.” Iowa
R. Evid. 5.801(c). We must analyze the purposes for which a party offers
the alleged hearsay to determine if it is admissible. State v. Sowder, 394
N.W.2d 368, 371 (Iowa 1986); State v. Horn, 282 N.W.2d 717, 724 (Iowa
1979). We do not rely on the purpose urged by the party offering the
alleged hearsay; rather we look at the true purpose for which the party
offered the testimony. Sowder, 394 N.W.2d at 371. We make our
determination on “an objective finding based on the facts and
circumstances developed by the record.” Id.
Hawkins introduced exhibit 173, which consisted of seventeen cards
and notes he received from friends and former coworkers. Four notes were
general well-wishes. One of the cards was a “Happy Boss’s Day” card,
signed by employees of the laboratory under Hawkins’s supervision.
Several other cards expressed happiness and gratitude to have worked
alongside Hawkins at the laboratory.
7
At least four notes expressed disdain toward GRMC for its
termination of Hawkins. One note read, “I was appalled to hear from
Marge that you lost your job . . . you did not deserve this. I am so sorry
this happened to you. Those responsible should be ashamed.” Another
note read, “I was in shock when Dr. J. B. Paulson told me of your release
from GRMC. He was irate! I do not know or need to know the details –
but it was an injustice.” A third note read, “Just a note to let you know
how sick we both were when we heard you were no longer at the hospital!!
So disappointed to see and hear what is going on at GRMC!!” A fourth
note read, “So proud to hear about your holding GRMC to account for their
treatment of staff.” A separate note stated GRMC had discriminated
against Hawkins based on his age, reading, “I learned from Diane 2 weeks
ago that the past 1–2 years have been tremendously difficult as you dealt
with not only cancer but also age discrimination at work.” Lastly, another
note from what appears to be a former colleague of Hawkins read, “I wish
you the best with this little mess, but I know you are doing the right thing
not only for yourself but all of us.”
Hawkins did not call any of these note authors to testify at trial.
GRMC objected to exhibit 173’s admissibility on the grounds of relevance
and hearsay. Over this objection, the trial court admitted it.
Hawkins claims he offered exhibit 173 to rebut GRMC’s evidence
that he was incompetent, unresponsive, and an unmotivated manager and
that the laboratory suffered because he failed to supervise employees
properly. Thus, it appears the purpose of the notes and cards was to show
GRMC’s purported reasons for firing Hawkins were not true. GRMC’s
reasons for firing Hawkins are a central issue for the jury to decide in this
case. Consequently, we find Hawkins offered many parts of exhibit 173 to
prove the truth of the matter asserted in the notes and cards: that he was
8
competent, responsive, and a motivated manager and that he properly
supervised the laboratory. Accordingly, we find the court erred in
admitting exhibit 173.
Just because the court erred in admitting hearsay does not mean
we automatically reverse the judgment. “A party may claim error in a
ruling to admit or exclude evidence only if the error affects a substantial
right of the party . . . .” Iowa R. Evid. 5.103(a). When analyzing whether
inadmissible hearsay requires reversal we start with the proposition that
“admission of hearsay evidence over a proper objection is presumed to be
prejudicial error unless the contrary is affirmatively established.” State v.
Nims, 357 N.W.2d 608, 609 (Iowa 1984) (en banc). “The contrary is
affirmatively established if the record shows the hearsay evidence did not
affect the jury’s finding[s in its verdict].” Elliott, 806 N.W.2d at 669.
One way to establish the hearsay evidence did not have an impact
on the jury’s verdict is to show there was overwhelming evidence on the
issue for which the hearsay was introduced, making the prejudicial impact
of the hearsay evidence insignificant. State v. Hallum, 585 N.W.2d 249,
256 (Iowa 1998) (overwhelming evidence of the defendant’s guilt, making
the prejudicial impact of the hearsay evidence insignificant), vacated on
other grounds, 527 U.S. 1001, 1001, 119 S. Ct. 2335, 2335 (1999). Here,
there was substantial evidence presented by both sides as to why GRMC
fired Hawkins. Thus, we cannot find the record overwhelmingly
established GRMC fired Hawkins because of his age or disability or in
retaliation.
Another way to demonstrate the hearsay evidence did not have an
impact on the jury’s verdict is to show the hearsay evidence was merely
cumulative. Elliott, 806 N.W.2d at 669. “If the record contains cumulative
9
evidence in the form of testimony, the hearsay testimony’s trustworthiness
must overcome the presumption of prejudice.” Id.
Here, Hawkins had at least six employees of GRMC testify to the
same matters contained in exhibit 173. These witnesses corroborated that
Hawkins was competent, responsive, and a motivated manager and that
he properly supervised the laboratory. But this in and of itself does not
establish the wrongfully admitted hearsay was merely cumulative.
Exhibit 173 contained statements in addition to those saying
Hawkins was competent, responsive, and a motivated manager and that
he properly supervised the laboratory. Other statements contained in
exhibit 173 urged GRMC should be held responsible for Hawkins losing
his job and correct the injustice it created by firing Hawkins. Statements
in exhibit 173 also indicated Hawkins was doing the right thing for the
staff at GRMC by holding GRMC responsible for its actions against
Hawkins. Finally, some statements in exhibit 173 opined that GRMC
committed discrimination against Hawkins because of his age and cancer.
These types of statements were not cumulative of the evidence in the
record relating to the purpose for which the hearsay statements were
offered. They went well beyond establishing that Hawkins was competent,
responsive, and a motivated manager and that he properly supervised the
laboratory. These statements were in the record without any foundation
and not subject to the test of cross-examination. The statements were
inflammatory and prejudicial. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d
168, 183–84 (Iowa 2004) (finding similar hearsay evidence “inflammatory
and clearly prejudicial”).
Additionally, we note this evidence went to the primary issue in this
case—why GRMC fired Hawkins. See id. at 184 (noting hearsay evidence
at issue directly addressed a central issue in the case). When inadmissible
10
hearsay evidence directly addresses a hotly contested central dispute of
the parties, it is harder for us to find the evidence nonprejudicial. See,
e.g., Madison v. Colby, 348 N.W.2d 202, 204 (Iowa 1984) (en banc) (finding
erroneously admitted hearsay was prejudicial when it related to disputed
significant issues). Thus, we find the court’s erroneous admission of
hearsay evidence affected a substantial right of GRMC.
Because the record failed to rebut the presumption of prejudice
associated with the admitted hearsay evidence, we reverse and remand for
a new trial. See Gacke, 684 N.W.2d at 184 (granting a new trial based on
erroneous and prejudicial admission of hearsay).
V. Issue That May Occur on Retrial.
Although we find GRMC’s hearsay evidentiary challenge dispositive
on this appeal, we also elect to address the district court’s refusal to
submit GRMC’s requested same-decision jury instruction because this
issue may occur on retrial. See, e.g., Krogmann v. State, 914 N.W.2d 293,
325 (Iowa 2018) (addressing nondispositive issue that may occur on
retrial).
A. The McDonnell Douglas Test. The Supreme Court formulated
the McDonnell Douglas test in 1973. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–26 (1973). In a Title VII
employment discrimination case, the employee must show a prima facie
case of discrimination. Id. at 802, 93 S. Ct. at 1824. The burden then
shifts to the employer to show a legitimate, nondiscriminatory reason for
the employer’s action. Id. If the employer shows a legitimate,
nondiscriminatory reason for its action, the burden shifts back to the
employee to show the reason for the employer’s action was pretexual. Id.
at 804, 93 S. Ct. at 1825.
11
B. The Price Waterhouse Test. In 1989, the Supreme Court
adopted the same-decision framework in Price Waterhouse v. Hopkins, 490
U.S. 228, 258, 109 S. Ct. 1775, 1795 (1989) (plurality opinion),
superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166,
§ 107(a), 105 Stat. 1071, 1075 (codified at 42 U.S.C. § 2000e–2(m) (2012));
id. at 259–60, 109 S. Ct. at 1795–96 (White, J., concurring in the
judgment); id. at 261, 279, 109 S. Ct. at 1796, 1806 (O’Connor, J.,
concurring in the judgment). The case established that when a Title VII
plaintiff proves that a discriminatory factor played a motivating part in the
employer’s decision (i.e., there were mixed motives), the employer may
avoid liability by presenting evidence that it would have made the same
decision in the absence of the discriminatory motive. Id. at 258, 109 S. Ct.
at 1795 (plurality opinion); id. at 259–60, 109 S. Ct. at 1795–96 (White,
J., concurring in the judgment); id. at 261, 279, 109 S. Ct. at 1796, 1806
(O’Connor, J., concurring in the judgment).
Two years after Price Waterhouse, Congress enacted the Civil Rights
Act of 1991, which modified Title VII by codifying the motivating-factor
standard and same-decision framework adopted by the Supreme Court in
Price Waterhouse. Civil Rights Act of 1991 § 107, 105 Stat. at 1075–76
(codified as amended as 42 U.S.C. §§ 2000e–2(m), 2000e–5(g)(2)(B)). Under
§ 2000e–2(m), a complaining party establishes an illegal employment
practice when it “demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though
other factors also motivated the practice.” 42 U.S.C. § 2000e–2(m).
Notably, Congress amended the statute to not only prohibit
discrimination in employment “because of [an] individual’s race, color,
religion, sex, or national origin,” e.g., 42 U.S.C. § 2000e–2(a) (1988)
(emphasis added), but also to prohibit employment practices where “race,
12
color, religion, sex, or national origin was a motivating factor,” 42 U.S.C.
§ 2000e–2(m) (2012) (emphasis added). Compare id. § 2000e–2, with 42
U.S.C. § 2000e–2 (1988). The purpose, as stated by Congress, was to
“provide additional protection against unlawful discrimination in
employment.” Civil Rights Act of 1991 § 2(3), 105 Stat. at 1071 (codified
at 42 U.S.C. § 1981 note (2012) (Congressional Findings)).
Section 2000e–5(g)(2)(B) provides,
(B) On a claim in which an individual proves a violation
under section 2000e–2(m) of this title and a respondent
demonstrates that the respondent would have taken the same
action in the absence of the impermissible motivating factor,
the court—
(i) may grant declaratory relief, injunctive relief
(except as provided in clause (ii)), and attorney’s fees
and costs demonstrated to be directly attributable only
to the pursuit of a claim under section 2000e–2(m) of
this title; and
(ii) shall not award damages or issue an order
requiring any admission, reinstatement, hiring,
promotion, or payment . . . .
42 U.S.C. § 2000e–5(g)(2)(B).
C. Proper Analysis Under Iowa Law. Our analysis begins by
examining the text of the statute. Iowa Code section 216.6(1)(a) forbids
discriminatory employment practices based on a protected characteristic,
while section 216.11(2) forbids discriminatory and retaliatory employment
practices because the employee engaged in a protected activity. Iowa Code
§§ 216.6(1)(a), .11(2) (2015). The ICRA, in relevant part, states,
It shall be an unfair or discriminatory practice for any:
a. Person to . . . discharge any employee, or to
otherwise discriminate in employment against . . . any
employee because of the age . . . or disability of such . . .
employee . . . .
13
Id. § 216.6(1)(a). The ICRA further states,
It shall be an unfair or discriminatory practice for:
....
2. Any person to discriminate or retaliate against
another person . . . because such person has lawfully opposed
any practice forbidden under this chapter . . . or has filed a
complaint . . . under this chapter.
Id. § 216.11(2).
In interpreting our civil rights statute, we have looked at the
similarities between the language used in the federal and our civil rights
acts. See, e.g., Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d
553, 571–72 (Iowa 2017); DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 7
(Iowa 2009). But we should also be inclined to consider the differences.
See, e.g., Haskenhoff, 897 N.W.2d at 635 (Appel, J., concurring in part and
dissenting in part) (joined by Chief Justice Cady, and Justices Wiggins and
Hecht); see also Simon Seeding & Sod, Inc. v. Dubuque Human Rights
Comm’n, 895 N.W.2d 446, 464 (Iowa 2017) (“We will not add a requirement
to a statute that the legislature chose to omit.”); Hawkeye Land Co. v. Iowa
Utils. Bd., 847 N.W.2d 199, 210 (Iowa 2014) (“[L]egislative intent is
expressed by what the legislature has said, not what it could or might have
said. . . . Intent may be expressed by the omission, as well as the inclusion,
of statutory terms.” (quoting State v. Beach, 630 N.W.2d 598, 600 (Iowa
2001))).
The ICRA does not contain language similar to Title VII’s that allows
an employer the opportunity to demonstrate it would have made the same
decision “in the absence of the impermissible motivating factor.” Compare
42 U.S.C. § 2000e–5(g)(2)(B), with Iowa Code ch. 216. The Iowa legislature
14
has amended the ICRA multiple times since 1991. 2 It could have amended
the ICRA to reflect the same changes that Congress chose to make,
including the provisions incorporating the Supreme Court’s interpretation
of Title VII as including a same-decision defense. See 42 U.S.C. § 2000e–
5(g)(2)(B); Price Waterhouse, 490 U.S. at 258, 109 S. Ct. at 1795 (plurality
opinion); id. at 259–60, 109 S. Ct. at 1795–96 (White, J., concurring in the
judgment); id. at 261, 279, 109 S. Ct. at 1796, 1806 (O’Connor, J.,
concurring in the judgment). It chose not to do so.
In DeBoom, we discussed the burden on plaintiffs who bring claims
under the ICRA. See 772 N.W.2d at 12–13. We said a plaintiff “need only
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.” Id. at 13 (quoting Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa
2005)). We discussed that the term a determining factor is better stated as
a motivating factor because a determining factor indicates a higher burden
for the plaintiff, which “is not required by either the Iowa Civil Rights Act
or case law.” Id. at 13–14.
Though we have interpreted the “because of” language in the ICRA
as requiring the plaintiff to show protected status as a motivating factor,
we have not interpreted the language as alleviating liability from an
employer that engages in the prohibited conduct but demonstrates it
would have made the same decision in the absence of the impermissible
2For instance, it added sexual orientation and gender identity as protected bases
in 2007 and wage discrimination as a prohibited action in 2009. See 2009 Iowa Acts
ch. 96 (codified as amended at Iowa Code §§ 216.2(15), .6A, .15(9)(a)(9)); 2007 Iowa Acts
ch. 191 (codified as amended throughout scattered sections of Iowa Code ch. 216). See
generally Iowa Civil Rights Comm’n, Civil Rights: Celebrating 50 Years of Higher Quality
Through Equality 4 (2015), https://icrc.iowa.gov/sites/default/files/publications/
2016/Civil%20Rights%20Toolkit%20updated.pdf.
15
motivating factor. See Haskenhoff, 897 N.W.2d at 635; DeBoom, 772
N.W.2d at 5–6, 12–14.
We have mentioned the same-decision defense in dicta. See
McQuistion v. City of Clinton, 872 N.W.2d 817, 828 n.4 (Iowa 2015) (“[T]he
employer has a chance to prove the same decision would have been made
without the discriminatory motive.”); Boelman v. Manson State Bank, 522
N.W.2d 73, 78 (Iowa 1994) (“Once the employee proves a mixed motive, the
burden of proof shifts to the employer to show that it would have made the
same decision in the absence of the discriminatory motive.”); Landals v.
George A. Rolfes Co., 454 N.W.2d 891, 894 (Iowa 1990) (“[T]he employer
has the burden of proving by a preponderance of the evidence that it would
have made the same decision even if it had not considered the improper
factor.”). 3 In none of those cases did we actually apply the same-decision
defense.
We also look to the purpose of the statute to determine legislative
intent. See State v. Allen, 708 N.W.2d 361, 366 (Iowa 2006). The purpose
of the ICRA is “ ‘to eliminate unfair and discriminatory practices in . . .
employment’ and ‘correct a broad pattern of behavior rather than merely
affording a procedure to settle a specific dispute.’ ” Cote v. Derby Ins.
Agency, Inc., 908 N.W.2d 861, 865 (Iowa 2018) (quoting Simon Seeding &
Sod, 895 N.W.2d at 462). We are to construe the chapter broadly to
effectuate its purposes. Iowa Code § 216.18(1). Title VII contains no
3That we mentioned the same-decision defense in these cases could be seen as an
endorsement of the defense. However, that we never actually applied the defense under
the ICRA is telling. The same-decision defense instruction was apparently given in Rivera
v. Woodward Resource Center, but we declined to reach the issue on appeal because error
was not preserved. 865 N.W.2d 887, 892 (Iowa 2015). That case was a wrongful-
discharge-in-violation-of-public-policy case, not a case brought under the ICRA. Id. at
889.
 16
similar language. Pippen v. State, 854 N.W.2d 1, 28 (Iowa 2014). As we
said in Pippen,
An Iowa court faced with competing legal interpretations of
the Iowa Civil Rights Act must keep in mind the legislative
direction of broadly interpreting the Act when choosing among
plausible legal alternatives. Any state court decision that
adopts a narrow construction of Title VII by the United States
Supreme Court without confronting the requirement in Iowa
law that the Iowa Civil Rights Act be interpreted broadly
misses an essential difference in state and federal civil rights
laws.
Id.
Further, “[r]ecognition of the independent character of state civil
rights statutes is particularly important when Congress passes legislation
designed to overcome decisions of the United States Supreme Court
narrowly interpreting civil rights statutes.” Id. at 29. In sum, while federal
courts’ interpretations of the federal civil rights statute are illustrative and
instructive, we are by no means bound by their construction when
interpreting the ICRA. See Hubbard v. State, 163 N.W.2d 904, 909 (Iowa
1969).
We look also to other jurisdictions for guidance in interpreting the
ICRA. See id. States have taken different approaches in their
interpretations. Minnesota, for instance, applies the McDonnell Douglas
analysis to all cases, even mixed-motive cases, not the Price Waterhouse
analysis. See Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619,
626 (Minn. 1988) (en banc). While the Minnesota Supreme Court
considered the issue before Price Waterhouse, it still used the McDonnell
Douglas test in later cases. See, e.g., Hoover v. Norwest Private Mortg.
Banking, 632 N.W.2d 534, 542 (Minn. 2001) (en banc). Kentucky, too,
does not distinguish between mixed-motive and single-motive cases. See,
17
e.g., Mendez v. Univ. of Ky. Bd. of Trs., 357 S.W.3d 534, 539–43 (Ky. Ct.
App. 2011).
Alaska has adopted the same-decision instruction in mixed-motive
cases. See Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 433–34 (Alaska
2004). The Alaska Supreme Court explained,
In cases where there is direct evidence of discrimination, we
. . . apply a mixed-motive analysis, which recognizes that
discriminatory employment decisions may not be motivated
solely by a prohibited characteristic such as race or sex, but
may be “based on a mixture of legitimate and illegitimate
considerations.”
Id. at 434 (quoting Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 44 (Alaska
2000), superseded by regulation on other grounds, 29 C.F.R. § 541.301(d)
(2004), as recognized by Moody v. Royal Wolf Lodge, 339 P.3d 636, 640–
42 (Alaska 2014)). Texas also has adopted the same-decision-defense
instruction for mixed-motive cases. See Reber v. Bell Helicopter Textron,
Inc., 248 S.W.3d 853, 858–59 (Tex. App. 2008). However, Texas’s statute
closely mirrors the Federal Title VII, with specific language stating,
In a complaint in which a complainant proves a violation
under Subsection (a) and a respondent demonstrates that the
respondent would have taken the same action in the absence
of the impermissible motivating factor, the court may grant
. . . attorney’s fees and costs . . . but may not award damages.
Id. at 857 (alterations in original) (quoting Tex. Lab. Code Ann. § 21.125(b)
(Vernon 2006)).
In Iowa, we have taken the first step and adopted the motivating-
factor standard under our statutes rather than the determining-factor
standard. Haskenhoff, 897 N.W.2d at 634, 637; DeBoom, 772 N.W.2d at
13. The motivating-factor standard is a lower standard than the
determining-factor standard. DeBoom, 772 N.W.2d at 13. Prior to
Congress amending the federal civil rights statute, the Supreme Court
18
decided that when the employee gets the motivating-factor standard for
causation, it is only fair to allow the employer an affirmative defense. Price
Waterhouse, 490 U.S. at 244–45, 109 S. Ct. at 1787–88 (plurality opinion).
Thus, when an employee proves discrimination was a motivating factor in
the employer’s actions, the employer could avoid liability “by proving by a
preponderance of the evidence that it would have made the same decision
even if it had not taken the plaintiff’s gender [or other protected
characteristics] into account.” Id. at 258, 109 S. Ct. at 1795.
Although we have said it only in dicta, we believe that under the
ICRA an employer should be entitled to the same-decision affirmative
defense because we have adopted the motivating-factor test for causation
in ICRA discrimination cases. This will allow an employer to avoid
damages liability when the employee proves by a preponderance of the
evidence that the discrimination was a motivating factor in the employer’s
actions.
Therefore, in discrimination and retaliation cases under ICRA, we
apply the Price Waterhouse motivating-factor standard in instructing the
jury and the defendant is entitled to an instruction on the same-decision
defense recognized in Price Waterhouse if properly pled and proved. See
Iowa R. Civ. P. 1.421 (“Every defense to a claim for relief in any pleading
must be asserted in the pleading responsive thereto, or in an amendment
to the answer made within 20 days after service of the answer, or if no
responsive pleading is required, then at trial.”). To clarify, we no longer
rely on the McDonnell Douglas burden-shifting analysis and
determinating-factor standard when instructing the jury.
VI. Conclusion.
We find the district court erred in admitting hearsay and the hearsay
was not harmless. Accordingly, we reverse the judgment of the district
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court and remand for a new trial. Upon retrial, the court should instruct
the jury in accord with this opinion.
REVERSED AND REMANDED.