John Vetter, plaintiff-appellee/cross-appellant v. State of Iowa, Iowa Department of Natural Resources, Aaron Lumley and Paul Tauke, defendants-appellants/cross-appellees. ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0208
Filed May 17, 2017
JOHN VETTER,
Plaintiff-Appellee/Cross-Appellant,
vs.
STATE OF IOWA, IOWA DEPARTMENT OF NATURAL RESOURCES,
AARON LUMLEY and PAUL TAUKE,
Defendants-Appellants/Cross-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Both parties appeal following a verdict in favor of the plaintiff on his
employment-discrimination claims. AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, David S. Steward and Julia S. Kim, Assistant Attorneys General, for
appellants/cross-appellees.
Brooke Timmer and Whitney Judkins of Fiedler & Timmer, P.L.L.C.,
Johnston, for appellee/cross appeallant.
Heard by Doyle, P.J., and Tabor and McDonald, JJ.
2
DOYLE, Judge.
The State of Iowa appeals the judgment entered in favor of John Vetter on
his claims of employment discrimination based on his disability. The State
challenges the sufficiency of the evidence supporting the jury’s verdict, several
jury instructions, and the amount of damages awarded. Vetter cross-appeals,
arguing the trial court erred in refusing to award his litigation expenses.
I. Background Facts and Proceedings.
John Vetter began working for the Iowa Department of Natural Resources
(DNR) in 1976 as a natural resources technician at the state forest nursery in
Ames. He injured his back at work in July 2011, which ultimately led to spinal
surgery in November 2011. When Vetter returned to work in January 2012, he
was initially assigned light-duty work before gradually resuming his normal job
duties. Although Vetter occasionally sought help from his coworkers in lifting
heavy objects, he was able to perform his essential job duties.
In September of 2012, Vetter underwent a functional capacity evaluation
to determine his physical limitations following his work injury. The evaluation
revealed limitations to the amount of weight Vetter could lift and carry and the
amount of time he could sit, stand, walk, climb, or bend each day. The
evaluation resulted in the issuance of permanent restrictions on Vetter’s ability to
engage in these activities. Vetter was also restricted from all squatting activity.
In January 2013, the State’s workers’ compensation administrator sent the
DNR the list of permanent restrictions identified during the functional capacity
evaluation and inquired as to whether the DNR could accommodate them. HR
was called. Legal was consulted. Consultants were hired. In order to determine
3
whether accommodations were possible, the DNR obtained two workplace
assessments that each recommended accommodations for Vetter based largely
on information provided by Vetter’s supervisor. The suggested accommodations
included job rotation every two-and-one-half hours and purchasing a customized
tractor. However, the evaluators never talked to Vetter about his job duties or
any accommodations he needed.
The DNR also failed to discuss the suggested accommodations with
Vetter or to otherwise ask him what, if any, accommodations he felt he needed to
perform his job. Instead, the DNR determined that implementing the suggested
accommodations “would have a detrimental impact on the business needs of the
DNR and that such accommodations would result in an undue burden on the
DNR and the State of Iowa” and terminated Vetter’s employment. Because the
evaluators based their suggested accommodations on erroneous information
about Vetter’s job duties, Vetter does not believe they were necessary.
Vetter filed a petition alleging the State violated the provisions of the Iowa
Civil Rights Act (ICRA) by discriminating against him with respect to the terms
and conditions of his employment based on his disability or a perceived disability,
and by failing to reasonably accommodate his disability. At the close of trial, the
following verdict form was provided to the jury:
Question 1: Did Plaintiff prove his claim of Disability
Discrimination against Defendants? (Please mark an “X” in the
appropriate spaces.)
YES _____ NO _____
(Proceed to Question 2.)
4
Question 2: Did Plaintiff John Vetter prove his claim that
Defendants failed to provide him with a reasonable
accommodation? (Please mark an “X” in the appropriate spaces.)
YES _____ NO _____
(Proceed to Question 3.)
Question 3: Did Plaintiff John Vetter prove his claim of
Perceived Disability Discrimination against Defendants? (Please
mark an “X” in the appropriate spaces.)
YES _____ NO _____
(Proceed to Question 4.)
(If your answer to Questions 1, 2, or 3 is “yes,” proceed to Question
4. If your answers to each of Questions 1, 2, and 3 is “no,” then do
not answer any more questions.)
The jury answered “yes” to questions 1 and 2, but it left question 3 unanswered. 1
The jury then proceeded to question 4 to determine the amount of Vetter’s
damages, which it determined to be $164,732.13 in back pay, $250,000.00 for
past emotional distress, and $185,000.00 for future emotional distress, for a total
damage award of $599,732.13. The trial court awarded Vetter an additional
$88,690.19 in front pay damages, for a total award of $688,422.32.
The trial court denied the State’s motion for judgment notwithstanding the
verdict, finding Vetter proved he was disabled, that his disability was a motivating
factor in the DNR’s decision to terminate his employment, and that the DNR
denied Vetter’s request for accommodation. The court denied the State’s motion
1
During her closing argument, with regard to Question 3—the perceived-disability claim,
Vetter’s trial counsel told the jury that:
If you have marked ‘yes’ to either Questions 1 or 2 on the verdict form,
you don’t get to this claim because you’ve already found [Vetter] had a
disability. You only get to this claim if you don’t think John had a
disability. Like I said, we don’t think you’ll get to this claim.
5
for new trial after finding substantial evidence supported the jury’s award of
damages for emotional distress. The trial court awarded Vetter $245,281.50 in
attorney fees and $837.14 in expenses. The State appealed, and Vetter cross-
appealed.
II. Sufficiency of the Evidence.
The State first contends the trial court erred in denying its motions for
directed verdict and judgment notwithstanding the verdict because the evidence
was insufficient to show it discriminated against Vetter based on his disability.
A. Scope of review.
We review sufficiency-of-the-evidence claims for the correction of errors at
law. See Faber v. Herman, 731 N.W.2d 1, 6 (2007) (setting forth the standard of
review for rulings on motions for judgment notwithstanding the verdict); Figley v.
W.S. Indus., 801 N.W.2d 602, 609 (Iowa Ct. App. 2011) (addressing the standard
of review for rulings on motions for directed verdict). The question we must ask
is whether substantial evidence supports each element of the plaintiff’s claims.
See Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001) (jnov);
Figley, 801 N.W.2d at 609 (directed verdict). Evidence is substantial if a
reasonable mind would accept it as adequate to reach a conclusion. See Figley,
801 N.W.2d at 609-10. In making this determination, we view the evidence in the
light most favorable to the nonmoving party. See Gibson, 621 N.W.2d at 391;
Figley, 801 N.W.2d at 610.
B. Elements of a disability-discrimination claim.
The ICRA protects employees from being discharged or otherwise
discriminated against in their employment based on their disability. See Iowa
6
Code § 216.1 (2013). Like its federal counterpart,2 the ICRA protects against two
types of discrimination: discrimination involving disparate treatment and
discrimination based on a disparate impact. See Pippen v. State, 854 N.W.2d 1,
9 (Iowa 2014).
“Disparate treatment” such as is alleged in the present case
is the most easily understood type of discrimination. The employer
simply treats some people less favorably than others because of
their race, color, religion, sex, . . . national origin[, or disability].
Proof of discriminatory motive is critical, although it can in some
situations be inferred from the mere fact of differences in
treatment. . . .
Claims of disparate treatment may be distinguished from
claims that stress “disparate impact.” The latter involve
employment practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one group than
another and cannot be justified by business necessity. Proof of
discriminatory motive . . . is not required under a disparate-impact
theory.
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).
Vetter claims the DNR engaged in disparate treatment discrimination
based on his disability. In order to succeed on his claims, Vetter was required to
show he is a person with a disability, he was qualified to perform his job either
with or without an accommodation for his disability, and he suffered an adverse
employment decision because of his disability. See Casey’s Gen. Stores, Inc. v.
Blackford, 661 N.W.2d 515, 519 (Iowa 2003).
2
Because the ICRA and the Americans with Disabilities Act (ADA) have common
purposes of prohibiting disability discrimination and share similar terminology, the Iowa
Supreme Court has “look[ed] to the ADA and underlying federal regulations in
developing standards under the ICRA for disability discrimination claims.” Bearshield v.
John Morrell & Co., 570 N.W.2d 915, 919 (Iowa 1997).
7
1. Whether Vetter has a disability.
The court instructed the jury that, in order to prove his disability-
discrimination claims, Vetter was required to show by a preponderance of the
evidence that he had a back impairment and that his back impairment was a
“disability” because “it substantially limited him in one or more major life
activities.” See Iowa Admin. Code r. 161-8.26(1) (defining “disability”); see also
Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6 n.1 (Iowa 2014)
(interpreting rule 161-8.26 to “provide the relevant definition of those persons
covered by the ICRA”). The jury instructions define “impairment” to mean “any
physiological disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin;
and endocrine.” With regard to whether a disability impairs a major life activity,
the court instructed the jury:
“Major life activities” are functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. A person is “substantially limited”
in a “major life activity” if the person is unable to perform a major
life activitiy that the average person in the general population can
perform, or is significantly restricted as to the condition, manner, or
duration under which the average person in the general population
can perform the same major life activity. The phrase “substantially
limits” should be interpreted broadly. The determination of whether
a condition substantially limits a major life activity must be made
without considering the helpful effects of mitigating measures such
as medications, surgery, physical therapy, or other treatment or
devices that improve the condition.
To determine whether [Vetter] is substantially limited in a
major life activity, you should consider (1) the nature and severity of
the impairment; (2) the duration or expected duration of the
impairment; (3) the permanent or long term impact, or the expected
8
permanent or long-term impact of or resulting from the impairment;
and (4) whether the individual is impaired during episodes or flare-
ups, even if life activities are not impaired at all when in remission.
See Iowa Admin. Code r. 161-8.26(3); Bearshield, 570 N.W.2d at 919 (citing 29
C.F.R. § 1630.2(j) (1997)3).
The undisputed evidence shows Vetter suffered a back injury that required
medical treatment, including surgery. The evidence also supports a finding that
the injury affected his musculoskeletal system. Vetter’s back injury impaired his
ability to lift, carry, sit, stand, walk, climb, bend, and squat, as is reflected in the
work restrictions issued by the doctor who examined Vetter during his functional
capacity evaluation. Vetter also testified that compared to the average person,
he was limited in his ability to lift, sit, walk, bend, or climb:
Q. Was your back condition a physical impairment? A. Yes,
it was.
Q. In 2012 and 2013 were you able to lift as much as the
average person with your back condition? A. No, I was not.
Q. Did your back condition limit your ability to lift? A. It did,
yes.
Q. Does your back condition still limit your ability to lift as
much as the average person? A. Yes, it does.
Q. In 2012 and 2013 did your back condition limit your ability
to sit, stand, walk, bend, kneel, or climb as much as the average
person? A. Yes, it did.
Lewis Vierling, a vocational rehabilitation counselor and consultant who
has “been heavily involved in doing research with the Americans with Disabilities
Act” since 1996 or 1997, testified as an expert witness for Vetter. In assessing
whether Vetter has a disability, Vierling “[l]ooked at the limitations that were
assigned to him, his skills and abilities, the type of skills that he had acquired
3
We note that Congress has since amended the ADA to protect a broader range of
people. See Goodpaster, 849 N.W.2d at 8-9 (discussing the expansion of coverage
under the Americans with Disabilities Act Amendments Act of 2008).
9
through his work,” reviewed his job description and the job descriptions
developed by the Department of Labor to determine a vocational profile. Vierling
testified that the work restrictions placed on Vetter’s back injury show he is
restricted in his ability to participate in the major life activities of sitting, standing,
walking, and lifting compared to the average member of the workforce.
Q. What is it that you learned John could not do with regard
to his disability? A. The main [thing he] could not do, the main
restriction, was lifting, weight-wise from—he was in the 20- to 25-
pound range and also walking, standing, sitting, there [were] some
limitations there, although they did not appear to be very restrictive
to me. Those were the main ones.
And the lifting is kind of a main one because jobs usually
start out with indicating that there’s an amount that you should be
able to lift in that job and then the frequency of the lifting. And I
believe in his job it was up to 50 pounds on an occasional basis,
which is about a third of a person’s workday.
So looking at that and then looking at his restrictions and
then talking to him about the work and about how he had been
doing the work after returning for about a year, actually more than a
year, it was very interesting.
Q. Was it your understanding that John was limited in lifting
between 20 or 25 up to 50 pounds? A. 20 to 25 pounds.
Q. Right, depending on whether it was waist to floor or—
A. Yes.
Q. —waist to crown, I think? A. Yes.
Q. 20 or 25— A. To waist and then overhead as well, yeah.
Q. Did you learn what kind of things John was able to do if
he was ever required to lift in that range, that he had options
available to him in the workplace? A. That he could do?
Q. Right. Like, in order to not have to lift between 25 and
50? A. Yes. He had some equipment that he had used in the past.
Ultimately, Vierling determined that Vetter has a disability under Iowa law.
Vetter also presented testimony from Vienna Hoang, an assistant
technology counselor specialist at Vocational Rehabilitation Services for the
State of Iowa who was asked by the DNR to write a report recommending
accommodations for Vetter’s disability. Hoang testified:
10
Q. And it was your understanding that the State believed
John had a disability when they asked you to write the report; right?
A. Correct, yes.
Q. That was the whole reason you were brought in; correct?
A. Yes.
....
Q. . . . You had no reason to disagree that John Vetter had a
disability since you saw his restrictions; correct? A. Correct.
Q. Having seen his restrictions, you believe that he was
more limited than the average person in his ability to do things like
lift, bend, kneel, sit, stand, walk, or climb; right? A. Yes.
The State argues Vetter does not have a physical impairment that impairs
a major life activity, citing testimony from Vetter’s coworkers that he was able to
perform his job duties and Vetter’s own belief at that time his discharge that he
was not disabled. However, the perception of others is not relevant to the
question of whether a person has a disability.4
A reasonable jury could have found the State’s evidence regarding
Vetter’s lack of a disability was not credible and rejected it. See Kaiser v.
Stathas, 263 N.W.2d 522, 526 (Iowa 1978) (noting a jury need not accept
testimony that is “contrary to natural laws, inherently improbable or
unreasonable, opposed to common knowledge, inconsistent with other
circumstances established in evidence, or . . . contradictory within itself”). For
instance, Paul Tauke, bureau chief of forestry for the DNR, testified that the
average person is able to meet the physical demands of the natural resource
technician job. He also agreed that Vetter’s restrictions limited him in his ability
4
An employer can be liable for discriminating against an employee who does not have a
disability if the employer treats the employee differently than others because it perceives
the employee to have a disability. See Vincent v. Four M Paper Corp., 589 N.W.2d 55,
62 (Iowa 1999). Vetter pled discrimination based on perceived disability as an
alternative to his claims of discrimination based on his disability. However, the jury did
not render a verdict on this claim.
11
to perform the duties of a natural resource technician without accommodation. In
spite of that, Tauke did not believe Vetter was disabled. Aaron Lumley, who
supervised the state nursery, likewise testified that Vetter was impaired in his
ability to lift, kneel, sit, stand, walk, climb, bend, or squat in comparison to the
average person. He also agreed those activities could qualify as major life
activities. However, Lumley continued to dispute that Vetter was disabled:
Q. So still using my definition of “disability,” is it still your
position that John is not disabled? A. At this time I was really going
on those work restrictions. I did not consider him disabled at that
time.
Q. And you still don’t? A. Correct.
Like Tauke, Lumley argued that it was Vetter’s work restrictions—not the
underlying back condition that resulted in those restrictions—that prevented
Vetter from doing his job. However, Lumley eventually admitted that if Vetter did
not receive accommodations for his permanent restrictions, he would be
restricted from the major life activity of working:
Q. So given the definition you and I talked about before that
John Vetter, with those restrictions, is limited as compared to the
average workforce, he’s disabled, didn’t we agree on that? A. . . . I
said the work restrictions placed upon him made those things
harder to do without accommodations, I believe.
Q. Well, let’s go back to the definition in Exhibit 1, the
employee handbook . . . . You knew John had a physical
impairment, he had . . . the back condition? A. I knew that John
had permanent work restrictions.
Q. [H]is back was physically affecting his ability to do his
job? A. His back was injured, yes.
Q. And major life activities, they give some list there, but it’s
more comprehensive than that list. Do you know that? A. I would
assume so, yes.
....
Q. So we know he’s actually affected in his ability to walk as
compared to the average person? A. That’s what the doctor said.
Q. And we also have agreed that the State said, “We have to
fire you, we’re taking your job away, your ability to work, because
12
we don’t think you can physically do the job anymore”; yes? A. He
could physically do the job. He just had doctor’s restrictions. So
there are portions—he could walk, right, he could bend, he could
kneel at times, I believe.
Q. If he could physically do the job, why was he fired? A.
Because not all the time he could because his doctor’s note said,
“Here’s what he can work within, and I did not want any time for
that to be violated.”
Q. So he was limited in the major life activity of working
because you didn’t believe you could accommodate that he could
work with those restrictions? A. I follow you. I’ll agree.
Substantial evidence supports the jury’s finding that Vetter has a disability.
Vetter’s back condition is an injury to his musculoskeletal system that is
permanent in nature and limits his ability to perform major life activities as
compared to the average person. He is restricted in the manner and duration in
which he may engage in these activities, and he is restricted from squatting
altogether. That he could perform the essential functions of his job at the DNR
with some accommodation speaks to whether he was qualified for his position,
not whether he was substantially impaired.
2. Whether Vetter was qualified for the position.
The State does not challenge the second element Vetter’s disability-
discrimination claims, which requires a finding that Vetter was a qualified
employee. Even if it had, substantial evidence supports the finding Vetter was
able to perform—and had performed—the essential functions of his job with an
accommodation for his lifting restrictions.
13
3. Whether Vetter suffered an adverse employment decision because
of his disability.
Finally, to succeed on his disability discrimination claims, Vetter was
required to show he suffered an adverse employment decision because of his
disability.
In most cases in which employment discrimination occurs, the
discriminatory motive for the adverse employment decision “will rarely be
announced or readily apparent.” Hamer v. Iowa Civil Rights Comm’n, 472
N.W.2d 259, 263 (Iowa 1991). In those cases where there is no direct evidence
that the adverse employment decision was based on disability, “evidence
concerning the employer’s state of mind is relevant in determining what
motivated the acts in question.” Id.; see also Casey’s Gen. Stores, 661 N.W.2d
at 520 n.3 (noting this analysis was formulated “because direct evidence of
discrimination is frequently unavailable, and an employee must rely on
circumstantial evidence to establish discriminatory intent”). The employee bears
this “initial burden of showing actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that such
actions were ‘based on a discriminatory criterion illegal under the [law].’” Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978) (citing McDonnell Douglas v.
Green, 411 U.S. 792, 802 (1973)). If the employee establishes this inference,
“the burden shifts to the employer to show a legitimate nondiscriminatory reason
for the adverse employment decision.” Casey’s Gen. Stores, 661 N.W.2d at 519-
20. “Once an employer proffers a legitimate nondiscriminatory reason, the
14
burden shifts back to the claimant to show the reason proffered by the employer
is pretextual.” Id. at 520.
However, in a smaller number of cases, there is direct evidence that the
employer based its adverse employment decision on an employee’s disability.
See Boelman v. Manson State Bank, 522 N.W.2d 73, 79 (Iowa 1994) (articulating
the test for cases in which an employer “relies on disability-related reasons” for
discharging an employee); see also Vaughan v. Must, Inc., 542 N.W.2d 533, 538
(Iowa 1996) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). In
those cases, the focus is typically on whether the employee is disabled or
qualified for the position rather than whether the employee suffered an adverse
employment decision based on a disability. See Boelman, 522 N.W.2d at 79.
Cases involving direct evidence do not employ the McDonnell Douglas burden-
shifting test. See id. When the employer bases an adverse employment
decision on an employee’s disability, there is pretext for the discriminatory
decision.5 See id.Vetter alleged two different adverse actions to support his employment-
discrimination claims. Vetter claimed the DNR terminated him because of his
disability. He also alleged the DNR failed to accommodate his disability. See
Casey’s Gen. Stores, 661 N.W.2d at 521 (holding an employer’s failure to make
5
Once an employee has proved the elements of a disability-discrimination claim, the
employer may rely on an affirmative defense like undue hardship to insulate it from
liability. Cf. Lamb v. Qualex, Inc., 33 F. App’x 49, 59 (4th Cir. 2002) (noting that once
the plaintiff has established the elements of a discrimination case, the defendant may
present evidence of an affirmative defense (specifically citing the affirmative defense of
undue hardship)); Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997)
(distinguishing an employee’s burden of establishing a reasonable accommodation
exists as part of its burden of proof with the employer’s burden of pleading and proving
the affirmative defense of undue hardship).
15
a reasonable accommodation for an otherwise qualified person with a disability is
an adverse employment action supporting a separate claim for recovery); see
also Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002) (stating an employer
commits unlawful discrimination if the employer does not make a reasonable
accommodation for a known physical or mental limitation of an otherwise
qualified individual with a disability). We consider each claim in turn.
a. The termination of Vetter’s employment.
The DNR provided only one reason for terminating Vetter. In the letter
terminating his employment, the DNR disclosed that it was discharging Vetter
because the cost of accommodating his restrictions would be unduly
burdensome. Those permanent restrictions were issued because of Vetter’s
disability. Therefore, the adverse employment decision was based on Vetter’s
disability. See Boelman, 522 N.W.2d at 78 (noting the only reason the
defendants offered for terminating the plaintiff was disability-related where the
plaintiff was terminated for performance and the plaintiff’s disability caused the
poor performance). Substantial evidence supports the jury’s finding the DNR
discriminated against Vetter when it terminated him based on his disability.
b. Reasonable accommodation.
The State challenges the finding that failed to reasonably accommodate
his disability.6 It argues Vetter failed to request an accommodation for his
6
The verdict form did not ask the jury to submit a separate damage calculation on each
individual theory of disability discrimination it found Vetter had proved. We surmise that
both the claim regarding termination and the failure-to-accommodate claim resulted in
the same damages. Vetter may not recover damages on each theory of liability because
his damages flow from a single action and recovering damages under both would be
duplicative. See Lara v. Thomas, 512 N.W.2d 777, 783 (Iowa 1994). Accordingly, our
16
disability, claiming the permanent restrictions placed on Vetter do not equate to a
request for accommodation.
In interpreting comparable federal law concerning failure-to-accommodate
claims, the Eight Circuit observed that in order to trigger the duty to make a
reasonable accommodation, the employer must be aware that the employee has
a disability and is seeking accommodation for that disability. See Ballard, 284
F.3d at 962 (citing Taylor v. Phoenixville Sch. Dist., 174 F.2d 142, 158-59 (3d Cir.
1999)); Walsted v. Woodbury Cty., 113 F. Supp. 1318, 1335 (N.D. Iowa 2000).
Although, generally, an employee must inform an employer of a disability and the
need for an accommodation, an express request for an accommodation is
unnecessary when the disability and need for accommodation are obvious. See
Walsted, 113 F. Supp. at 1335.
Here, Vetter’s disability developed as a result of a work-related injury, of
which the DNR was aware. When Vetter returned to work in January 2012, the
DNR accommodated his disability. One year later, the workers’ compensation
administrator provided the DNR with a list of permanent restrictions
recommended as a result Vetter’s functional capacity evaluation. The DNR then
hired two consultants to determine whether it could accommodate the
recommended restrictions. These facts sufficiently triggered the DNR’s duty to
make reasonable accommodations. Vetter was not required to inform the DNR
of a disability it already had knowledge of or to request accommodations that the
finding that sufficient evidence supports the jury’s verdict on Vetter’s claim regarding his
termination alone provides a basis for a damage award. Regardless, we will address the
sufficiency of the evidence supporting Vetter’s theory of liability based on the DNR’s
failure to accommodate.
17
State had been providing. In spite of its knowledge of Vetter’s disability, the DNR
failed to include Vetter in the process of determining which accommodations
would be necessary to allow him to perform his job duties. See Magnussen v.
Casey’s Mktg. Co., 787 F. Supp. 2d 929, 956 (N.D. Iowa 2011) (noting the
determination of whether an accommodation is possible “requires an interactive
process”); see also Casey’s Gen. Stores, 661 N.W.2d at 521 (holding that the
ICRA requires “an interactive process that engages the employee and employer
to work in concert to achieve a reasonable accommodation”). Instead, it
determined that the cost of accommodating Vetter’s disability was unduly
burdensome and terminated him. Sufficient evidence supports Vetter’s claim of
disability discrimination based on the failure to accommodate his disability.
III. Jury Instructions.
The State also challenges several of the trial court’s rulings relating to the
jury instructions, arguing the trial court erred in failing to give one of the State’s
requested instructions. It also challenges three of Vetter’s proposed instructions
that the court gave the jury.
A. Scope of review.
We review challenges to jury instructions for correction of errors at law.
See Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). If a
requested instruction correctly states the applicable law and is not embodied in
the other instructions, the trial court is required to give it. See id. Likewise,
giving an instruction that materially misstates the law ordinarily requires reversal.
See Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 902 (Iowa 2015). However,
reversal is only warranted if the error is prejudicial. See Herbst v. State, 616
18
N.W.2d 582, 585 (Iowa 2000) (citation omitted). The burden is on the party
claiming harmlessness, and we assume prejudice has occurred unless the
record firmly establishes the contrary. See Rivera, 865 N.W.2d at 903.
In determining whether error was harmless, we “first guess” the jury by
trying to divine what the jury would have done if it had been properly instructed.
See id. Harmless error occurs “if the record affirmatively establishes that a party
has not been injuriously affected by the alleged error or that there has not been a
miscarriage of justice.” Id. If a party succeeds on two theories, any error in
instructing on one theory is harmless if the jury was properly instructed on the
other theory. See id. Finally, failure to give a requested instruction is harmless if
the idea is contained in the instructions as a whole. See id.
B. Business judgment instruction.
The State first argues the trial court erred in refusing to give its requested
instruction on business judgment. That instruction states:
An employer is free to terminate an employee’s employment
for any nondiscriminatory reason even if its business judgment
seems objectively unwise. Therefore, you may not return a verdict
for Plaintiff just because you might disagree with [the DNR’s]
actions or believe them to be harsh or unreasonable.
You may, however, consider the believability of an
explanation in determining whether it is a cover-up or pretext for
discrimination. In order to succeed on his . . . disability-
discrimination claims, [Vetter] must persuade you, by a
preponderance of the evidence, that were it not for . . . disability
discrimination, his employment would not have been terminated.
In support of giving this instruction, the State notes the Iowa Supreme Court has
held: “An employer is entitled to make his own policy and business judgments,
and may, for example, fire an adequate employee if his reason is to hire one who
will be even better, as long as this is not a pretext for discrimination.” Woodbury
19
Cty. v. Iowa Civil Rights Comm’n, 335 N.W.2d 161, 166 (Iowa 1983) (quoting
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979)).
Assuming the business judgment instruction is a correct statement of the
law, the trial court’s failure to give the instruction was harmless. The Woodbury
County case, like the other cases cited by the State,7 is a case involving indirect
evidence of discrimination, analyzed under the McDonnell Douglas burden-
shifting test. See id. As we have already stated, the only reason the DNR
provided for Vetter’s termination related to his disability. Because this reason is
direct evidence of discriminatory animus, there is no need to use the McDonnell
Douglas burden-shifting test. See Vaughan, 542 N.W.2d at 539; Boelman, 522
N.W.2d at 79. The State was not prejudiced by the court’s failure to give the
requested instruction. See Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993)
(holding no prejudice resulted from error in comparative fault instructions when
the jury did not find plaintiff at fault).
C. Unconscious bias instruction.
The State complains the trial court erred in giving the jury Vetter’s
requested instruction on unconscious bias. That instruction states:
The law recognizes that unlawful discrimination sometimes
happens without the decisionmaker having planned, thought out, or
7
In addition to Woodbury County, the State cites Farmland Foods, Inc. v. Dubuque
Human Rights Commission, 672 N.W.2d 733, 743 (Iowa 2003) (noting Farmland Foods’
failure to recall an African American employee was “at the very heart of the employer’s
business judgment and expertise” because it encompassed Farmland Foods’ ability to
allocate its resources), Cerro Gordo County Care Facility v. Iowa Civil Rights
Commission, 401 N.W.2d 192, 197 (Iowa 1987) (“We may examine the employer’s
motive to determine whether the employer was moved by discriminatory bias rather than
business judgment.”), and Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 69
(Iowa 2013) (noting an employer does not violate the ICRA by treating an employee
unfairly so long as the employer does not engage in discrimination based on an
employee’s protected status).
20
even acknowledged to himself or herself that it is taking place. The
law acknowledges the effect of society’s stereotypes on employers
in their decisionmaking, and that biased decisionmaking based
upon those stereotypes can violate the law, even if the
decisionmaker is unaware of bias in his or her thinking. This is
because the law’s purpose is to eradicate discrimination in all
forms, regardless of the personal character of the individuals
making discriminatory decisions.
If you find from all the surrounding circumstances that
Defendants treated Plaintiff differently than it would have if he had
not had a disability, even if the managers do not acknowledge or
realize their own motives, you may find in favor of Plaintiff.
The State argues that the instruction misstates the law because it allowed the
jury to find it engaged in disparate treatment of Vetter without the necessary
proof of intent.
We need not decide whether the instruction was a proper statement of law
because the instruction was inapplicable to the facts of Vetter’s case. The
instruction concerns an employer’s discriminatory animus in making adverse
employment decisions when there is only indirect evidence to establish it.
Because Vetter’s claims involve direct evidence that the DNR terminated Vetter
based on his disability or failed to provide him a reasonable accommodation for
his disability, the instruction should not have been given. See Bride v. Heckart,
556 N.W.2d 449, 452 (Iowa 1996) (“The submission of instructions upon issues
that have no support in the evidence is error.” (citation omitted)).
Although it was error to give the requested instruction concerning
unconscious bias, reversal is not required because the error was harmless. The
jury instruction relates to those cases where a discriminatory animus is hidden.
Because Vetter proved the adverse employment decisions made in his case
were directly related to his disability, the jury had no need to look further into the
21
DNR’s motives. Because the instruction did not affect any determination made
by the jury, the error was harmless.
D. Pretext instruction.
The State also challenges the trial court’s decision to give Vetter’s
instruction regarding pretext. That instruction states:
The employer’s stated explanation for refusing to
accommodate Plaintiff or for terminating him must be specifically
articulated and non-discriminatory. The reasonableness of the
employer’s explanation may be considered in determining whether
it is a pretext, or a cover-up for disability discrimination.
Proof that the Defendants’ explanation is not true is one form
of evidence that you may find proves discrimination. If you find that
Defendants’ justification for refusing to provide Plaintiff with an
accommodation or for terminating him is not true, discrimination
may be the most likely alternative explanation. This may be
especially so, since Defendants are in the best position to put forth
the actual reasons for their decision.
You may find that Plaintiff’s disability was a motivating factor
in the Defendants’ refusal to accommodate him or their decision to
terminate him if it has been proven that the Defendants’ stated
reason for their decision is not the real reason, but it is pretext to
hide discrimination.
You may find that disability discrimination occurred, if you
find that the reasons offered by the Defendants for refusing to
provide accommodations or terminating Plaintiff are false.
The State argues this jury instruction misstates Vetter’s burden of proof because
it allowed the jury to find the DNR engaged in discrimination if it disbelieved the
DNR’s reason for terminating Vetter without clearly requiring the jury to also
believe it intentionally discriminated against him.
Again, Vetter’s claims did not require a burden-shifting analysis, and
Vetter was not required to show the DNR’s offered reason for terminating him or
failing to accommodate his disability was pretext for discrimination. Both his
claims involved direct evidence that the adverse employment actions alleged—
22
termination and failing to accommodate his disability—were based on his
disability. Therefore, the instruction on pretext was not warranted.
We again conclude there was no prejudice to the State in instructing the
jury on pretext because Vetter’s success did not require him to discredit any
nondiscriminatory reasons for the DNR’s actions. The DNR based its adverse
employment decisions on Vetter’s disability. Therefore, the pretext instruction
had no bearing on the outcome of trial.
E. Reasonable accommodation instruction.
Finally, the State argues the court erred in instructing the jury on the law
relating to reasonable accommodations. The State complains that the court
instructed the jury that Vetter had to prove that either he “requested
accommodation for his disability or [the DNR] knew or should have known that
[Vetter] needed accommodation for his disability.” (Emphasis added.) The State
also complains about another jury instruction, which states in part:
When an employer becomes aware that an employee is
disabled and may need an accommodation, the law requires the
employer to initiate an informal, interactive process to determine
appropriate reasonable accommodations. All that is required to
trigger an employer’s duty to engage in the interactive process is
knowledge (including circumstantial) that the employer may have a
condition that may qualify as a disability and result in some
limitation that could require an accommodation.
The State argues that to succeed on his failure-to-accommodate claim, Vetter
had the burden of showing he requested a reasonable accommodation. It claims
the jury instructions erroneously lowered Vetter’s burden of proving he requested
an accommodation.
23
As stated in our analysis regarding the sufficiency of the evidence to
support Vetter’s failure-to-accommodate claim, an employee is not required to
personally request an accommodation when the employee’s disability and need
for an accommodation are obvious. See Walsted, 113 F. Supp. at 1335.
Because the instruction correctly states the law, we affirm.
IV. Damage Award.
In its final assignment of error, the State argues the trial court erred in
denying its motion for new trial based on its claim the jury awarded excessive
damages. Specifically, the State claims the jury’s award of $435,000 for
emotional distress damages is unsupported by the record and that passion or
prejudice influenced the award.
A. Scope of review.
We review a motion for new trial based on discretionary grounds for an
abuse of discretion. See Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa
2009). In order to receive a new trial, the State must affirmatively establish its
claim that the verdict was motivated by passion or prejudice. See id. A verdict
that is clearly excessive is presumed to have been a product of passion or
prejudice. See id. If it is not clearly excessive, passion or prejudice must be
found in the record evidence. See id.B. Award of emotional distress damages.
An award of damages for emotional distress is available under the ICRA.
See Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm’n, 453 N.W.2d 512,
525 (Iowa 1990). Such damages are recoverable under the ICRA even if there is
no showing of physical injury, severe distress, or outrageous conduct. See id.24
The amount of damages to award is primarily a jury question, and we will not
interfere if the award is within a reasonable range of the evidence. See Jasper,
764 N.W.2d at 772.
Generally, damages for emotional distress are highly subjective and not
easily calculated in economic terms. See id. In determining whether a damage
award for emotional distress is excessive, it is helpful to consider the range of
such damages awarded in similar cases. See id. However, our supreme court
has acknowledged that
the upper range of emotional-distress damages increases as the
nature of the wrongful conduct involved becomes more egregious,
and the emotional distress suffered becomes more severe and
persistent. Even the length of the employment, compatibility of the
worker in the employment, age and employment skills of the
worker, and the span of time necessary to become reemployed
impact the amount of emotional-distress damages.
Id. at 773.
In denying the State’s motion for new trial based on an excessive award of
damages for emotional distress, the trial court held:
The court agrees with plaintiff that the jury’s damage award
for emotional distress, while certainly at the upper end of the range
of reasonable awards for such injuries, was nevertheless supported
by substantial evidence in the record and was not excessive. As
further support for its conclusion that the jury’s award was not
excessive, the court cites defendants’ remarkable and totally
unexpected change of position at trial and in the middle of
presentation of their case in chief, specifically, from one of
complete denial of liability to one of admitting that they made
mistakes and essentially saying that, if they had it all to do over
again, plaintiff would still be employed by defendants, and then
apologizing to plaintiff for same.[8] In the court’s view, defendants
8
After sincerely regretting the paper-based decision to fire Vetter, Vetter’s immediate
supervisor said at trial: “And John, I’m very sorry. I made mistakes. I am very sorry.
And I know you’ll probably never forgive me, but I am sorry on that. . . . Looking
backwards, I would have done things differently. . . . If I had a time machine today, I’d
25
more or less invited a damage award of the magnitude of the one
actually returned.
The State argues the trial court’s finding that it “invited” the high damage award is
evidence that the award is punitive in nature. The State implies that Vetter’s lack
of medical treatment for his emotional distress is further indication that the jury’s
award was excessive.
The evidence shows that Vetter, who was sixty-four years old at the time
of trial, had worked full-time for the DNR for more than thirty-six years before his
termination. Vetter testified that he loved his job, stating:
Well, I love growing the trees and the satisfaction of treating
the seed and seeing them grow out in the field and knowing you
had accomplished growing, you had a good crop for the year, and
then the maintenance of equipment.
I took a lot of pride in the painting of all the tractors and the
equipment and building new things to make our job easier and
better.
On the day he was terminated, Vetter’s supervisor confiscated Vetter’s keys, took
Vetter’s work identification, and escorted Vetter to his car. Vetter told the jury
this made him feel “[l]ike I was a criminal who had done something wrong.” As
he walked to his car, Vetter who was “[s]till in shock and not understanding what
was going on,” asked the supervisor if the DNR had considered the impact his
firing would have on the nursery; the supervisor replied, “Nobody cares.”
Although Vetter “held on to the silly hope that [he] was really needed” at the
go back and fix things.” This is reminiscent of the response Frank Shirley (played by
Brian Doyle-Murray) gave after Clark Griswold (played by Chevy Chase) chastised
Shirley for cancelling his employees’ Christmas bonuses: “Sometimes things look good
on paper, but lose their luster when you see how it affects real folks.” National
Lampoon’s Christmas Vacation (Warner Bros. 1989).
26
nursery, he was never reinstated. Vetter further explained to the jury how his
termination affected him:
Seemed like I had worn out my usefulness, self-esteem took
a hit, felt like I . . . just couldn’t do my job.
Q. Have you questioned your worth since you were fired? A.
Yes, I did. Yes, I have.
Q. Can you tell us about that? A. Struggled with feeling
whether I knew what I was really doing and just, you know, working
on the cars and my hobby and things like that. I questioned my
abilities.
Q. Were you an insecure person before your termination?
A. Not at all.
Q. Did you feel like the State, DNR, the defendants in this
case, have labeled you incapable? A. Yes. That’s exactly what I
felt.
Q. What effect does that have on you? . . . Currently how
has it felt over the two years since you’ve been fired? A. It’s taken
me quite a while to get back into my hobby. And, actually, I’m
starting back into it now, and I’m participating in it more.
Q. Why did it take you a while to get back into it? A. Several
reasons. Because everybody knew me in the community and I’d
been fired, I had a hard time facing people. I just was
embarrassed, kind of felt humiliated. I really struggled with facing
these same people that I had for [thirty-six] years.
Q. How long do you think you could have continued to do
your job at the state forest nursery at a high level? A. The high
level that I was doing, I felt that I could have continued all the way
until I wanted to retire. I did not see any issues.
Q. How often do you think about the circumstances
surrounding your termination? A. I’d say almost daily.
Q. And when you have those thoughts, how do you feel? A.
I’m hurt. I’m very hurt, and I will add in anger. I’m very upset with
the State for treating me that way.
Q. What has been the very worst moment of this whole
ordeal for you? A. Other than May 17, having to relive this all over
again.
Q. The jury might be wondering if you’re here because
you’re bitter. Why have you pursued this lawsuit? A. Truthfully,
I’ve pursued this because I feel that what the State did to me was
wrong.
You shouldn’t be allowed to treat people that have given
blood, sweat, and tears to their career for [thirty-six] years and then
just kick them out the door. I don’t feel that’s right nor should it be
allowed.
27
Q. John, will you look at Exhibit 10, page 9? It’s the last
page. This was the document Aron Flickinger created regarding
work duties at the nursery.
Mr. Flickinger writes, “Our customers are not cold statistics.
They are human beings with feelings, moods, and emotions like our
own.”
When you read that and think about it, what does that make
you think? A. Neither are the people that work there. They’re
human beings with feelings, moods, and emotions. We’re not just
another statistic.
Q. Do you feel like in this case you were treated like a cold
statistic? A. Yes, on a piece of paper. That was it. Just words on
a piece of paper led to my being fired.
Q. How did that make you feel after [thirty-six] years of
service to be treated like a cold statistic? A. Cheated, because I
don’t feel I was given a fair shake. I don’t feel that the State acted
honestly in how they treated me.
Vetter’s son, Aaron, also testified extensively about the effect that Vetter’s
termination had on his emotional state. Aaron told the jury that Vetter loved
working for the DNR, loved the work he did, and was passionate about his job.
When Vetter called Aaron and told him he had been terminated, Vetter was in
shock and Aaron initially “thought by the way that he was acting that somebody
might have passed.” Aaron testified that Vetter “just couldn’t believe it. And
what’s worse is that he didn’t understand it.” When Aaron saw Vetter later in the
week, “he walked around sort of like a ghost for a bit there and really just unsure
and sick.” Vetter withdrew from his family. Aaron testified that he believes the
way Vetter’s career with the DNR ended has tainted the thirty-six years Vetter
worked for the DNR. Aaron observed Vetter’s emotional pain manifest
physically, testifying, “I’ve seen him cry. I’ve heard him choke up over the phone
when this first happened. I’ve seen him lose weight. . . . I know that he had
struggled with his appetite for the longest time. Those are the things that I
noticed.” Vetter’s termination also affected his ability to sleep, and Aaron opined
28
that being terminated was one of the most difficult things Vetter, a veteran of the
Vietnam War, had been through. Aaron characterized Vetter’s termination after
three decades of working for the State as “a slap in the face.”
Vetter’s wife, Carol, also testified about the toll Vetter’s termination took on
him. Carol explained that Vetter took a lot of pride in the work he did for the DNR
and that his job was “his life. He was so proud of the tree nursery. That was his
baby.” Vetter even took Carol to the nursery after hours on their second date to
show her around. When Vetter told Carol he had been fired, she could tell by
“[h]is voice, the way he tried to compose himself to talk,” that Vetter was “in total
shock and disbelief, very, very upset.” She observed that it took Vetter “some
time” for the reality of the situation to sink in, and that the following months were
difficult for him because he “gave his whole heart to his job and [was] just told to
leave.” Vetter ran through the termination scenario in his mind many times a day
for approximately six months, and it still played through his mind at the time of
trial. She believed the hurt and pain will continue for the rest of his life.
Considering the length of Vetter’s employment with the DNR, his age and
employability, his passion for his job, and the toll his termination has taken on his
emotional and physical health, a larger award of emotional distress damages is
warranted. We disagree with the State’s characterization of the damage award
as excessive. The State failed to show the award was influenced by passion or
prejudice. On this basis, the trial court was within its discretion to deny the
State’s motion for new trial based on the damage award, and we affirm.
29
V. Litigation Expenses.
On cross-appeal, Vetter challenges the trial court’s denial of his request to
be awarded litigation expenses. We review this claim for an abuse of discretion.
See Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990).
The trial court ordered Vetter be reimbursed for the cost of filing the
petition and serving it on the defendants, the standard witness fee and additional
compensation for his expert witness’s testimony at trial, and the fee paid to an
expert witness for his discovery deposition. However, it denied Vetter’s request
that he be reimbursed for the costs of scanning, copying, printing, electronic
research, long-distance phone charges, mileage, postage, meals, and parking.
Vetter argues the trial court abused its discretion in denying recovery of these
expenses because it mistakenly believed it did not have the authority to award
him these expenses.
In denying these expenses, the trial court held that “only expenses for
which reimbursement is available are those for which reimbursement is
specifically authorized by statute or rule.” However, the ICRA provides that a
plaintiff who brings a successful claim under the ICRA may recover damages,
which “shall include but are not limited to actual damages, court costs and
reasonable attorney fees.” Iowa Code § 216.15(9)(a)(8) (emphasis added). The
ICRA’s federal counterparts have been interpreted to allow recovery of
“reasonable out-of-pocket expenses incurred by the attorney which are normally
charged to a fee paying client” as attorney fees. Sturgill v. UPS, Inc., 512 F.3d
1024, 1036 (8th Cir. 2008) (citation omitted) (concluding this rule is consistent
with United States Supreme Court precedent).
30
A court abuses its discretion when it fails to exercise any discretion. See
MC Holdings, L.L.C. v. Davis Cty. Bd. of Rev., 830 N.W.2d 325, 331 (Iowa 2013).
Because the trial court had the ability to award the litigation expenses Vetter
requested and erroneously believed it was unable to award these expenses, it
failed to exercise its discretion. Therefore, the trial court abused its discretion in
denying Vetter’s request for an award of expenses for scanning, copying,
printing, electronic research, long-distance phone charges, mileage, postage,
meals, and parking. Accordingly, we reverse the denial of these litigation
expenses and remand to the district court to determine whether to award these
expenses as part of Vetter’s attorney fees. On remand, the court should also
consider the amount of attorney fees, costs, and expenses necessitated by this
appeal. See Landals, 454 N.W.2d at 898-99 (holding that to the extent a plaintiff
in an age discrimination case brought under the ICRA “was entitled to an award
of attorney fees for his litigation expense before the district court, he is likewise
entitled to an award of fees necessitated by this appeal” and “remand[ing] to the
district court for hearing on [plaintiff]’s motion for appellate attorney fees and
costs”).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Tabor, J., concurs; McDonald, J., dissents.
31
MCDONALD, Judge. (dissenting)
The defendants incompetently managed Vetter’s work restrictions and
callously terminated Vetter’s employment. The jury was angry. It punished the
defendants. I am tempted to concur in the majority opinion on the ground the
defendants received their just deserts, karmic justice was achieved. Except
karmic justice is not a legal reason. Legal reasons compel me to respectfully
dissent.
I.
To establish his claim under the Iowa Civil Rights Act Vetter was required
to establish as a threshold matter he had a “disability” within the meaning of the
act. See Schlitzer v. Univ. of Iowa Hosp. & Clinics, 641 N.W.2d 525, 530 (Iowa
2002) (setting forth prima facie case); see also Christian v. St. Anthony Med. Ctr.,
Inc., 117 F.3d 1051, 1053 (7th Cir. 1997) (“The [ADA] is not a general protection
of medically afflicted persons. . . . If the employer discriminates against them on
account of their being (or being believed by him to be) ill, even permanently ill,
but not disabled, there is no violation.”); Bray v. Nat’l Servs. Indus., Inc., 209 F.
Supp. 2d 1343, 1350 (M.D. Ga. 2001) (“To complete such an analysis, however,
it is necessary first to determine whether an impairment, either actual or
perceived, would constitute a disability under the ADA.”).
The ICRA defines “disability” as “the physical or mental condition of a
person which constitutes a substantial disability.” Iowa Code § 216.2(5) (2013).
This required Vetter to prove he had “a physical or mental impairment which
substantially limits one or more major life activities, has a record of such an
impairment, or is regarded as having such an impairment.” Iowa Admin. Code r.
32161-8.26(1); see also Goodpaster v. Schwan's Home Serv., Inc., 849 N.W.2d 1,
6 n.1 (Iowa 2014) (interpreting rule 161-8.26 to “provide the relevant definition of
those persons covered by the ICRA”). The term “physical or mental impairment”
means
a. Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body
systems: neurological; musculoskeletal; special sense organs;
respiratory, including speech organs; cardiovascular; reproductive;
digestive; genito-urinary; hemic and lymphatic; skin; and endocrine;
or
b. Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities.
Iowa Admin. Code r. 161-8.26(2). The “term ‘major life activities' means
functions such as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” Id. r. 161-8.26(3). The
impairment and corresponding limitation or limitations must be more than
transitory. See Vincent v. Four M Paper Corp., 589 N.W.2d 55, 62 (Iowa 1999).
Even when the evidence is viewed in the light most favorable to the jury’s
verdict, there is not substantial evidence Vetter was actually disabled. Vetter
suffered no long-term impairment or substantial limitation of a major life activity.
See Bray, 209 F. Supp. 2d at 1351 (“It is well-recognized that temporary injuries
or impairments are not generally recognized as constituting substantially limiting
conditions for purposes of showing a disability.”). Vetter suffered an acute work-
related back injury in 2011. His physical capabilities were limited following the
injury. Vetter then underwent surgery and post-surgical rehabilitation. Vetter
testified he “was very pleased” with his surgery and rehabilitation. Vetter
returned to work in February 2012 without restrictions. Vetter admitted he
33
returned to work and performed all of the functions of his physically demanding
job. Vetter’s counsel asked him if he was “ever unable” to “to work outdoors and
withstand physically demanding work such as stooping, bending, and routinely
lifting up to [fifty] pounds.” Vetter answered “No, not at all.” It was only in
January 2013—after Vetter had been working without restrictions for almost one
year—that Vetter was issued work restrictions. The work restrictions were issued
after a functional capacity evaluation performed for workers’ compensation
purposes, but the restrictions did not bear any relationship to Vetter’s actual
physical condition. Vetter testified he did not pay attention to the restrictions
because they were not of “any value.” He testified he “had been able to do [his]
job for the last year” and did not need any restrictions.
Vetter’s counsel recognized this glaring legal problem in Vetter’s claim.
During closing argument, Vetter’s counsel argued the jury could find Vetter was
disabled if he was impaired and substantially limited in 2011, even if the
impairment and substantial limitation had been resolved by 2013:
But the reason we focus on 2011 . . . . is . . . the fact that you need
to think about the condition without the helpful effects of mitigating
measures such as—and we know he had surgery, we know he had
physical therapy, we know he had injections. So 2011 was when it
was at its worst. And you also have to consider that in determining
whether or not he’s disabled.
Vetter contends this was proper because, in determining whether the
plaintiff was disabled, the jury should not have considered mitigating measures,
like surgery, that improved Vetter’s physical condition. Vetter’s argument is
unavailing. As above noted, it is well established a temporary impairment is not
a disability within the meaning of the act. In addition, Vetter fails to distinguish
34
between mitigating measures that ameliorate any limitation or limitations caused
by a physical impairment (e.g., corrective lenses, hearing aids, and, in some
circumstances, surgery) and mitigating measures that resolve the impairment.
The law is well established that an employee who suffers an acute impairment,
who undergoes surgery or treatment to resolve the resulting impairment, and
who is able to recover without significant restriction is not “disabled” within the
meaning of the act. See, e.g., Troeger v. Ellenville Cent. Sch. Dist., 523 F. App’x
848, 852 (2d Cir. 2013) (holding plaintiff was not disabled where he suffered an
injury, had surgery, and recovered such that he had no significant restrictions
other than a lifting restriction of twenty pounds); Heintzelman v. Runyon, 120
F.3d 143, 145 (8th Cir. 1997) (stating an “asserted inability to work while
recovering from surgery is simply not evidence of a permanent impairment”);
McDonald v. Pennsylvania, Dep’t of Pub. Welfare, 62 F.3d 92, 96–97 (3d Cir.
1995) (holding that recuperation after abdominal surgery is not a disability);
Evans v. City of Dallas, 861 F.2d 846, 852–53 (5th Cir. 1988) (holding knee injury
that required surgery where there was recovery did not result in a disability);
Huskins v. Pepsi Cola, 180 F.Supp. 2d 347, 351–52 (N.D.N.Y.2001) (holding an
employee who had a shoulder injury that prevented him from performing his job
duties for five months was not disabled under the ADA); Hutchinson v. United
Parcel Serv., Inc., 883 F. Supp. 379, 396 (N.D. Iowa 1995) (holding employee
was not disabled where employee suffered non-minor injuries but “the medical
record demonstrates that they were temporary, and that any permanent
impairment is only slight”); Maloney v. Barberton Citizens Hosp., 672 N.E.2d 223,
225 (Ohio Ct. App. 1996) (interpreting Ohio law and concluding plaintiff was not
35
“handicapped” within the meaning of discrimination law where “plaintiff’s back
injury was a transitory injury, which caused her pain and inconvenience for a
definite period of time, but which had no adverse residual effects”); Bennett v.
Nissan N. Am., Inc., 315 S.W.3d 832, 845 (Tenn. Ct. App. 2009) (holding
employee who underwent neck-fusion surgery to address neck and arm pain was
not disabled within meaning of Tennessee act where employee fully recovered,
was able to return to work, and was physically active at home). Stated another
way, Vetter had no physical impairment during the relevant time period and thus,
as a matter of law, was not disabled.
Even assuming the surgery and rehabilitation did not fully resolve Vetter’s
physical impairment, the physical impairment did not “substantially limit” Vetter in
one or more major life activities. During closing argument, Vetter’s counsel told
the jury “when those physical restrictions were given . . . he’s disabled as a
matter of law.” That is incorrect. The argument fails to distinguish between a
physical impairment, a work restriction, and a disability. See Pryor v. Trane Co.,
138 F.3d 1024, 1028 (5th Cir. 1998) (“[T]he mere fact that Pryor had work
restrictions did not require the jury to find that she had a disability that
substantially limited a major life activity.”); Palmieri v. City of Hartford, 947 F.
Supp. 2d 187, 199 (D. Conn. 2013) (“However, the terms ‘impairment’ and
‘disability’ are not equivalent; for an individual to be disabled he must show that
the impairment substantially limits a major life activity . . . .“); Jones v. Walgreen
Co., 765 F. Supp. 2d 100, 109–10 (D. Mass. 2011) (“Particularly important here
is the distinction that Plaintiff has failed to draw between her disability and her
restrictions. Plaintiff contends that she was wrongfully terminated because of her
36
disability. Defendant Walgreen freely admits that she was terminated because of
her restrictions. Plaintiff has conflated her disability and her restrictions,
overlooking the fact that an employer may base a decision that the employee
cannot perform an essential function on an employee's actual limitations, even
when those limitations result from a disability.” (emphasis in original) (internal
quotation omitted)). While work restrictions might evidence a limitation caused
by a physical impairment, it is not the case that work restrictions establish a
disability as a matter of law.
The work restrictions in this case do not establish Vetter was substantially
limited in a major life activity. First, the restrictions did not correspond to Vetter’s
actual physical condition. Because Vetter filed a workers’ compensation claim,
the workers’ compensation claim administrator had Vetter undergo a functional
capacity evaluation in September 2012. Vetter testified he did not understand
the purpose of the evaluation because he was better by the time of the
evaluation. Vetter testified he did not pay attention to the evaluation or the
subsequent restrictions because they were not of “any value.” He testified he
had been able to do the job for the last year. In fact, when the consultant came
and asked whether Vetter actually needed accommodations in performing his
job, Vetter said, “I told him that there was nothing that I could think of I needed; I
was fine and was able to do my job.” Second, and more important, the
restrictions imposed in this case have been found, as a matter of law, to not
constitute a substantial limitation on one or more major life activities. See
Hansen v. Seabee Corp., 688 N.W.2d 234, 242 (Iowa 2004) (holding lifting
restriction was not a substantial limitation of a major life activity); See, e.g.,
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Gretillat v. Care Initiatives, 481 F.3d 649, 654 (8th Cir. 2007) (holding impairment
that limited crawling, kneeling, crouching and squatting was not a disability);
Lorenzen v. GKN Armstrong Wheels, Inc., 345 F. Supp. 2d 977, 990 (N.D. Iowa
2004) (lifting restriction and minor impairments, even when considered
cumulatively, do not constitute a substantial limitation on a major life activity);
Miller v. Airborne Express, No. 3:98-CV-0217-R, 1999 WL 47242, at *4 (N.D.
Tex. Jan. 22, 1999) (stating squatting does not constitute a major life activity). In
addition, Vetter did not produce evidence his purported limitations actually
“prevent[ed] or severely restrict[ed] [him] from doing the set of activities that are
‘of central importance to most people’s daily lives.’” Nuzum v. Ozark Auto.
Distrib., Inc., 432 F.3d 839, 846 (8th Cir. 2005) (quoting Toyota Motor Mfg. v.
Williams, 534 U.S. 184,198 (2002)).
We must always evaluate impairments on an individual basis, which
requires an assessment of the actual impairment, the actual limitations caused
by the impairment, and whether the purported limitations severely restrict the
plaintiff in the activities of daily living. See Moore v. J.B. Hunt Transp., Inc., 221
F.3d 944, 952 (7th Cir. 2000). Conclusory statements regarding the plaintiff’s
condition that merely mimic the relevant legal standard are insufficient to
establish a disability. See Doren v. Battle Creek Health Sys., 187 F.3d 595, 598–
99 (6th Cir.1999), Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.
1985) (“Conclusory allegations without specific supporting facts have no
probative value.”). Instead, the disability determination must be “based on the
effect of the impairment in [the plaintiff’s] life.” Hinojasa v. Jostens Inc., 128 F.
App’x 364, 367 (5th Cir. 2005).
38
There is nothing in this record to suggest that Vetter had an actual
impairment in 2013, that the impairment actually limited him in any significant
way, or that the purported limitation impacted any activity of central importance in
his daily life. Ryan Schlatter worked as a fire prevention specialist at the nursery
since 1999. He was friends with Vetter and saw Vetter at work almost every day.
He testified Vetter “looked like he was doing everything he had done before the
back injury.” He also testified the “back injury did not really affect his ability to do
his job.” Schlatter also testified the back injury did not limit Vetter outside work.
Vetter rebuilt and restored antique cars and hot rods. According to Schlatter, this
was physical work. Vetter did this before and after the back surgery.
Kevin Barker worked with Vetter on a daily basis for eighteen years. He
testified Vetter could do all of the physical work the job required. He testified
Vetter could walk without limitation. He testified Vetter had no issue standing on
his feet for a long period of time. He testified Vetter was able to get down
underneath vehicles and do work. Plaintiff’s counsel asked Barker, “In the last
[eighteen] years you worked by this man, had anything changed in that last year
that you somehow thought he couldn’t do the job?” Barker answered, “No. He
could do the job.” Beyond the job, Barker testified there was not “anything that
[Vetter] did not do or could not do after his injury that he did before.”
Similarly, Aaron Wright saw Vetter on a daily basis and testified there was
no physical job duties Vetter was unable to perform. He testified Vetter
maintained the equipment and machines. He testified Vetter lifted and helped
others lift things. Vetter operated a forklift. “He was able to complete all his job
duties in the year before he left the Department of Natural Resources.”
39
Vetter confirmed his coworkers’ assessment regarding the lack of any
permanent impairment and the lack of any actual limitation. He did not need help
lifting. In fact, he testified he actually “help[ed] people lift things even after [his]
injury.” He was able to climb. When asked whether, “it was difficult for you to
climb into a tractor,” Vetter replied, “No, not at all.” He was also asked, “Do you
think you grimaced when climbing into a tractor,” and he answered, “No.” He
testified he was able to drive vehicles over bumpy terrain. He testified he could
climb ladders. He testified his injury did not prevent him from collecting seeds,
walking, reaching, and bending. He was able to get on the ground or sit without
assistance. He was able to get under equipment to work on it. He did it “all the
time.” He testified he was able to twist and rotate.
The fact Vetter had no permanent impairment and no permanent limitation
was evidenced by the very physical work he performed. After recovering from
surgery, Vetter performed manual tasks at work. He continued to repair heavy
machinery. He put a clutch into a tractor. He rebuilt a seeder. He repaired a
lawnmower, which required pulling off the deck and replacing the bearing and
blades. He rebuilt motors, transmissions, and other hydraulic equipment. He
continued to fabricate heavy equipment and tools for the nursery. He built a
protective cage for a battery charger, which required him to cut steel and weld it
together. He testified he maintained the “nursery grounds, fence, windbreaks,
and parking lots.” He trimmed windbreaks back where there were overhanging
branches. Vetter testified this was physical work. He “ran the chainsaw and
drove the tractor and loaded the branches.” He “stocked cleaning supplies and
organized the cleaning room.” After his injury, he removed and regraded a field.
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Vetter “[ran] the bulldozer and [took] out the trees and cut them off and hauled
them off to the dump or drug them down to the brush pile for disposal.” After
doing that he “went in with a tiller and did seed bed prep.”
There is also no evidence Vetter was limited outside the workplace.
Vetter testified he is not a couch potato. He still works on his antique cars, and
he helps others do the same. He is an avid boater. He also has ridden
RAGBRAI in the past and testified he was training to ride it again. RAGBRAI is a
week-long bicycle ride across the state of Iowa. Vetter did not introduce any
evidence of a limitation of any major life activity outside the workplace.
This is not simply a case in which Vetter could perform the essential
functions of the job despite his disability. Here, the essential functions of the job
were physical in nature. The fact that Vetter was able to perform them shows not
only that he could perform the essential functions of the job but also that he had
no impairment and that he was not physically limited in any way, let alone
substantially limited.
I understand why the jury reached the verdict it did. The jury was mad at
the defendant’s treatment of a long-time, loyal employee. Rightfully so.
However, the Iowa Civil Rights Act does not create a cause of action for
employees wronged by inept managers. The purpose of the act is to prevent
employment discrimination against the “disabled.” There is not substantial
evidence Vetter was disabled within the meaning of the act. I would vacate the
judgment entered in favor of the plaintiff and remand this matter for dismissal.
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II.
Even assuming there was substantial evidence in support of the jury’s
verdict, I would still vacate the judgment and remand this matter for new trial due
to prejudicial instructional error. Claims of instructional error are reviewed for the
correction of errors at law. See Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 707
(Iowa 2016).
The defendants first challenge the pretext instruction the court gave to the
jury. With respect to claimed error in an instruction given, error will not warrant
reversal unless the objecting party has been prejudiced. See Kurth v. Iowa Dep’t
of Transp., 628 N.W.2d 1, 5 (Iowa 2001). Prejudicial error occurs when an
instruction materially misstates the law, confuses or misleads the jury, or is
unduly emphasized. See Anderson v. Webster City Cmty. Sch. Dist., 620
N.W.2d 263, 268 (Iowa 2000). Instructions that comment on the evidence or the
weight to be given to the evidence are improper and prejudicial. See Peters by
Peters v. Vander Kooi, 494 N.W.2d 708, 712–13 (Iowa 1993).
In this case, the district court gave the jury a modified pretext instruction.
As a general rule, trial courts have the discretion to modify or rephrase approved
or uniform instructions “to meet the precise demands of each case as long as the
instructions fully and fairly embody the issues and applicable law.” Sumpter v.
City of Moulton, 519 N.W.2d 427, 434 (Iowa Ct. App. 1994) (citing Norton v.
Adair Cty., 441 N.W.2d 347, 358 (Iowa 1989)). In Deboom v. Raining Rose, the
supreme court held the following pretext instruction was a correct statement of
the law:
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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.
772 N.W.2d 1, 9 (Iowa 2009). The district court modified this instruction to also
add, “If you find that Defendants’ justification for refusing to provide Plaintiff with
an accommodation or for terminating him is not true, discrimination may be the
most likely alternative explanation.” (emphasis added.) The instruction went on,
stating, “This may be especially so, since Defendants are in the best position to
put forth the actual reasons for their decision.”
The district court’s additional instructions were an improper comment on
the evidence. Here, the district court correctly instructed the jury it could infer
discriminatory intent if it found the defendants’ stated reasons for terminating
Vetter’s employment were false. However, the instruction went further and told
the jury discrimination may be “the most likely” inference to be drawn from the
evidence and further explained why discriminatory intent may be “the most likely”
inference to be drawn. In short, the district court’s modified instruction, rather
than informing the jury it may draw an inference of discrimination from certain
evidence, instructed the jury it should draw an inference of discrimination
because it was “the most likely” explanation of the defendants’ conduct.
The defendants also contend the district court erred in refusing to give the
defendants’ requested instruction on the business judgment rule. The requested
instruction provided:
An employer is free to terminate an employee’s employment for any
nondiscriminatory reason even if its business judgment seems
objectively unwise. Therefore, you may not return a verdict for
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Plaintiff just because you might disagree with Defendants’ actions
or believe them to be harsh or unreasonable.
It is reversible error to decline to give an instruction where it correctly states the
law, has application to the case, and is not stated elsewhere in the instructions.
See Deboom, 772 N.W2.d at 5. I conclude the district court erred in refusing to
give the requested instruction.
Federal courts have adopted the instruction for use in employment
discrimination cases. See Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.
1979) (stating “[t]he court should also . . . explain that an employer is entitled to
make its own subjective business judgments, however misguided they appear to
the jury, and to fire an employee for any reason that is not discriminatory”). The
First, Third, Eighth, and Eleventh Circuits have model instructions for the
business judgment rule to be used in employment discrimination cases, including
disability cases. The Federal Jury Practice and Instructions includes a model
instruction, stating “In determining whether defendant’s stated reason for its
actions was a pretext for discrimination, you may not question defendant’s
business judgment. Pretext is not established just because you disagree with the
business judgment of defendant [name], unless you find that defendant’s reason
was a pretext for discrimination.” 3C Fed. Jury Prac. & Instr. § 171:75 (6th ed.).
While our supreme court has not explicitly approved an instruction for the
business judgment rule to be used in cases arising under the Iowa Civil Rights
Act, it has affirmed the employer is entitled to exercise business judgment in
addressing personnel matters. See Farmland Foods Inc. v. Dubuque Human
Rights Comm’n, 672 N.W.2d 733, 743 (Iowa 2003) (noting the employer’s right to
44
exercise “business judgment and expertise”); Woodbury County v. Iowa Civil
Rights Comm’n, 335 N.W.2d 161, 167 (Iowa 1983) (“An employer is entitled to
make his own policy and business judgments, and may, for example, fire an
adequate employee if his reason is to hire one who will be even better, as long
as this is not a pretext for discrimination.” (quoting Loeb, 600 F.2d at 1012 n.6)).
This leads me to conclude the business judgment rule is a correct statement of
the law in Iowa. This also leads me to conclude the district court should have
given the instruction and erred in declining to do so. See, e.g., Walker v. AT & T
Tech., 995 F.2d 846, 849–50 (8th Cir. 1993) (“AT & T’s proposed instruction
states the substantive law that an employer has the right to make business
decisions—to assign work, to change an employee's duties, to refuse to assign a
particular job, and to discharge—for good reason, bad reason, or no reason at
all, absent intentional age discrimination. The court did not instruct the jury that
an employer had a right to make such business decisions. . . . the district court
erred.”).
III.
For the foregoing reasons, I respectfully dissent.