Byron Kuehl v. Tegra Corporation and Douglas Palmer and James Palmer, Individually and in their Corporate Capacities ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0416
Filed June 15, 2022
BYRON KUEHL,
Plaintiff-Appellant,
vs.
TEGRA CORPORATION and DOUGLAS PALMER and JAMES PALMER,
Individually and in their Corporate Capacities,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary,
Judge.
Byron Kuehl appeals a summary judgment ruling. AFFIRMED.
Mark D. Sherinian and Emily E. Wilson of Sherinian & Hasso Law Firm, Des
Moines, for appellant.
Michele L. Brott and Margaret A. Hanson of Dentons Davis Brown PC, Des
Moines, for appellees.
Heard by May, P.J., and Greer and Chicchelly, JJ.
2
MAY, Presiding Judge.
Byron Kuehl brought an action for wrongful termination against his former
employer, Tegra Corporation (Tegra); its president, Douglas (Doug) Palmer; and
its vice-president, James (Jim) Palmer.1 Kuehl appeals the district court’s rulings
that (1) an email exchange with the defendants’ counsel was not admissible and
(2) the defendants were entitled to summary judgment. We affirm.
I. Background Facts and Prior Proceedings
The following facts are undisputed.
In 2015, Kuehl began working for Big Soo terminal (Big Soo), which is
owned by Tegra. Big Soo is a “barge, rail[,] and truck terminal engaged in
warehousing and distribution.” While at Big Soo, Kuehl worked as the assistant
manager. As assistant manager, Kuehl’s duties related to operations and
personnel management, including coordinating safety and providing safety
materials. Kuehl felt responsible for safety. He considers himself a safety expert.
Kuehl reported directly to general manager Kevin Knepper, who had been
employed by Big Soo since 1983. Jim and Doug intended for Kuehl to learn the
business and take over the general manager role when Knepper eventually retired.
On March 28, 2018, Kuehl was away from the terminal at a safety
conference. That day, Knepper directed some employees, including Brian
McCormick, to move some rail cars. But the rail cars collided with some stationary
1We will refer to Tegra, Doug, and Jim individually as needed throughout this
opinion. Our references to “the defendants” are to Tegra, Doug, and Jim
collectively.
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cars. McCormick died in the accident. Kuehl was upset about McCormick’s death
because they were friends. So Kuehl requested counseling, and Tegra paid for it.
Following the accident, the Iowa Occupational Safety and Health
Administration (IOSHA) conducted an investigation. IOSHA interviewed Kuehl
along with four other Big Soo employees in March and April as a part of the
investigation. Kuehl spoke out about Big Soo during his interview. However, the
IOSHA interviews were confidential.
On August 6, Doug, Jim, Knepper, and Kuehl met with the director of
IOSHA, and the director was angry. Following the meeting, Doug wondered what
the employees said during their interviews with IOSHA. Doug believed an
employee or employees gave “bogus” information during the investigation. After
that, Kuehl was afraid that if he reported something to IOSHA, it would jeopardize
his career.
Following McCormick’s death and the IOSHA investigation, Big Soo
changed its approach to workplace safety. Kuehl made several suggestions on
how to improve safety, and many of those suggestions were implemented. On
Kuehl’s recommendation, Big Soo appointed a new safety manager. Big Soo
started to hold “Safety 10” meetings to address safety concerns. It drafted new
safety policies and increased employee safety training. Big Soo also promoted a
new safety compliance officer on Kuehl’s suggestion. And Big Soo held weekly
“Toolbox Talks” to discuss safety. Tegra also hired a safety consultant. The safety
consultant recommended Big Soo develop a more strategic approach to establish
a sustainable safety culture and suggested a four-step plan to achieve that goal.
4
During his work with the company, the safety consultant never saw management
reject or resist a safety initiative.
Meanwhile, the relationship between Knepper and Kuehl soured following
McCormick’s death. Kuehl was upset with Knepper because he believed
McCormick’s death occurred because he was following a directive from Knepper.
Kuehl found it difficult to respect Knepper because of his perception of Knepper’s
approach to safety. Communication between the two men was largely limited to
email communication. In summer 2018, an employee who reported to both
Knepper and Kuehl told Jim there was a problem between the two men. At another
point, a different employee stated it was difficult to show respect to both Knepper
and Kuehl because one would have to hope Kuehl wouldn’t hold it against them.
At some point, Kuehl referred to Knepper as “numb nuts” and “blockhead.”
By November, Kuehl talked to Jim and Doug about the ongoing tension
between himself and Knepper. Doug told Kuehl it was “time to knock the icicles
off” his relationship with Knepper. Doug believed Kuehl was “wallowing in the
accident.” And Jim made it one of his three main goals for 2019 to improve Kuehl
and Knepper’s relationship. So he decided to start regular one-on-one meetings
to work towards that goal.
But in January 2019, Knepper emailed Doug and Jim to inform them that
Kuehl
has been unwilling to speak to me other than to get absolute critical
information or to point out my shortcomings. All of his conversations
with me have been terse. It is no secret that I hate conflict. I will do
most anything to avoid it until things go too far and I blow-up, but I
am working on that. So, I have passively accepted the way [Kuehl]
is treating me. [Kuehl] and [I] will need to work closely developing
and implementing the safety program. A management transition will
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require open dialog. Neither of these components will succeed in the
current state of communication between [Kuehl] and [me]. We have
to address this and act on it now. We have too much going and too
much at stake. I am willing to do whatever it takes for [Kuehl] and
[myself] to move into an acceptable working environment. We don’t
have to carry-on with small talk but we need to be able to work
together with unimpeded communication as we transition together.
[Kuehl] needs to grasp this concept or something like it. I am open
to discuss any options.
At the end of February, Knepper emailed Kuehl stating:
You have not spoken to me, (if you speak to me at all) in a civil tone
for months. You have made it very difficult for me to communicate
with you. I am seeing a therapist to help me with issues. We talk
about you not talking to me a lot. He suggested a conflict
management tool, Feelings, Facts and Environment. I have been
working on laying this out for a few months. I can’t kick this down the
road any longer.
Kuehl responded, “You claim I’ve made it difficult for you to communicate with me
yet this is the first attempt you’ve made to address a situation that began over (11)
months ago. I’ve never denied you a chance to discuss this.” Knepper responded
Sometime after that you stopped talking to me at all. I took that as a
stay clear from you. So I have. I mentioned that I am not good at
dealing with conflict. It has taken me 11 months to get to this point
where we can effectively implement the safety program and the
transition of me retiring.
Kuehl informed Knepper, “I have quite the laundry list of things that you need to
hear from me man to man. This will not be pleasant and isn’t the kind of thing that
should be emailed. I’ll let you know when I’m ready to discuss.” Then Kuehl
emailed Jim stating that his latest email to Knepper was “unintentionally rude and
demanding” and requested Jim arrange a meeting for them with a mediator.
Kuehl also met with Jim multiple times. They discussed the timeframe for
safety improvements, and Kuehl informed Jim of times Knepper failed to wear
safety glasses, carry a radio, or announce himself. He also informed Jim that
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Knepper operated new equipment without proper training and did not enforce
safety rules.
Kuehl recommended mental-health therapist Carolyn Phillips to Jim for
counseling between Kuehl and Knepper. So Jim hired Phillips to help with
Knepper and Kuehl. Phillips met with Kuehl two times, Knepper one time, and
both men together one time. Following the sessions, Phillips reported to Jim that
Kuehl felt he needed to limit his communication with Knepper to emails. And when
face-to-face communication was necessary, Jim would also need to be present.
On May 3, an employee texted Kuehl about work he was uncomfortable
completing due to the height of the work. Kuehl went to observe the work and
noted the employee was wearing one safety lanyard. Kuehl then sent an email
about the work to Knepper. Kuehl also photographed the work and then took the
employee a second safety lanyard. A few days later, Kuehl emailed Knepper about
the work and described it as a “near miss” and that he believed that “peoples’ lives
[were] in jeopardy.” Knepper forwarded the email to Jim and Doug stating in part,
“Guys, I can’t continue to work like this. I am nearly sick to my stomach every time
I drive to work or even think about encountering [Kuehl].”
Also in May, Kuehl requested a $12,000 raise.2 At the end of the month,
Jim and Doug met with Kuehl. They offered Kuehl an immediate $4000 raise and
an additional $8000 if certain learning goals were met in the next sixty to ninety
days. Five learning goals were provided to Kuehl including one requiring him to
not “trash talk” Knepper at an upcoming conference. Based on Kuehl’s body
2 Kuehl had already received a four percent raise in January.
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language, Doug believed Kuehl was agitated by the proposal.3 Kuehl did not
immediately accept the offer and instead decided to consider it. They all agreed
to meet again on June 4 to discuss the proposal.
Jim and Doug became concerned Kuehl would issue them an ultimatum
requiring them to choose between himself and Knepper.4 So they obtained a
severance agreement from their attorney in the event Kuehl did not accept their
terms.
Kuehl arrived at the June 4 meeting with prepared remarks and a list of his
accomplishments, which he read aloud. Kuehl requested that they discuss the
timeline for his transition to general manager and wanted to know if one of the
company’s customers told them that he was trash-talking Knepper. He also stated
he believed the requirement that he not trash-talk Knepper amounted to “a
personal attack,” which he characterized as “[a]n unfounded concern” that “hardly
seems part of a performance evaluation, let alone a basis to refuse a raise
request.” Jim was concerned who Kuehl would blame or shun next. So Jim told
Kuehl he did not see how they could move forward together. Jim handed Kuehl
the severance package even though Kuehl never issued an ultimatum.
In October, Kuehl brought this action for wrongful termination in violation of
public policy. Specifically, Kuehl alleged he had been terminated because he
reported safety violations in violation of the “public policy articulated in” Iowa Code
section 88.1 (2019). Because Kuehl intended to introduce email communication
3 Kuehl agrees Doug described him in this way but denies Doug’s description of
his behavior.
4 Kuehl claims their concerns were not reasonable.
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between Doug and Tegra’s attorney, Kuehl moved for an advanced ruling on the
admissibility of the evidence. Kuehl argued (1) the communication did not amount
to legal advice, (2) Doug waived attorney-client privilege by forwarding the email
thread to Kuehl and Knepper, and (3) the court should apply the crime-fraud
exception to conclude the communication is not privileged. For their part, the
defendants argued the emails were protected by attorney-client privilege. The
defendants also moved for summary judgment. The district court heard oral
argument on both matters but issued separate rulings. The court determined the
email communication was protected by attorney-client privilege. The court also
granted the defendants’ motion for summary judgment.
Kuehl appeals both rulings.
II. Email Communication
We begin by considering Kuehl’s arguments regarding the admissibility of
Doug’s email communication with Tegra’s attorney.5
A. Scope and Standard of Review
“Our standard of review for a ruling on a statutory evidentiary privilege is for
the correction of errors at law.” State v. Weeks, No. 13-1231, 2014 WL 5243359,
at *2 (Iowa Ct. App. Oct. 15, 2014) (citing State v. Anderson, 636 N.W.2d 26, 30
(Iowa 2001)). “Our standard of review for the admissibility of evidence alleged to
be privileged is for an abuse of discretion.” Id. (quoting Anderson, 636 N.W.2d at
5We note there is no dispute an attorney-client relationship existed between Tegra
(or Doug as Tegra’s president) and counsel who represented Tegra during the
IOSHA investigation.
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30). “There is an abuse of discretion when the court’s discretion is exercised on
grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Id.B. Discussion
“Iowa law has long recognized the common law privilege against the
disclosure of confidential communications between attorney and client.” Laurie
Kratky Doré, Iowa Practice Series: Evidence § 5.502:1 (Nov. 2021 Update)
[hereinafter Doré]. “Stated simply, the privilege permits a client to refuse to
disclose and to prevent any other person from disclosing confidential
communications made by the client to procure legal advice or legal services from
an attorney.” Id. This privilege is codified in Iowa Code section 622.10. It provides:
A practicing attorney . . . who obtains information by reason
of the person’s employment . . . shall not be allowed, in giving
testimony, to disclose any confidential communication properly
entrusted to the person in the person’s professional capacity, and
necessary and proper to enable the person to discharge the
functions of the person’s office according to the usual course of
practice or discipline.
Iowa Code § 622.10(1).
1. For the purpose of legal advice
Kuehl first argues that the email thread is not protected by attorney-client
privilege “because it was not made for the purpose of receiving legal advice.” See
Doré § 5.502:2 (“[I]n order for an attorney-client relationship to fall within the
privilege, the consultation with the lawyer must be made with the contemplation of
securing legal advice or representation. . . . It is generally accepted that the
communications from the attorney to the client will also be encompassed by the
privilege, at least where the communications would directly or indirectly reveal the
confidences of the client.”). The email thread related to the August 6, 2018 meeting
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with the IOSHA director. Kuehl notes the meeting itself was not confidential. So,
he reasons, the subsequent communication discussing the meeting was not
necessarily for the purpose of securing legal advice. And he notes Doug initially
stated in his deposition that he “never thought of it as legal advice.”
However, we have reviewed the email thread and conclude the
communication was made for the purpose of receiving legal advice. In the first
email, Doug listed what he perceived as inaccuracies from the meeting and asked
what the next steps will be. Counsel responded with an answer. Then Doug
inquired about an IOSHA timeline, which counsel confirmed. This communication
was all about the IOSHA investigatory process for which counsel was representing
Tegra.
2. Waiver
Next, Kuehl argues Doug waived any privilege by forwarding the email
thread to Knepper and Kuehl. However, privilege is not waived when it is “not
disseminated beyond those persons who, because of the corporate structure, need
to know its contents.” Keefe v. Bernard, 774 N.W.2d 663, 672 n.9 (Iowa 2009)
(quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1978)).
Kuehl contends that the emails contained no information that Knepper and Kuehl
needed to know. We disagree. Both Knepper and Kuehl were a part of the IOSHA
investigation and attended the August 6 meeting. The email thread informed them
what would happen next and when to expect another IOSHA inspection at Big
Soo—critical information for the Big Soo general manager and assistant manager
who headed up safety at the terminal. So we conclude Doug did not waive the
attorney-client privilege by forwarding the email thread to Knepper and Kuehl.
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3. Crime-fraud exception
Finally, Kuehl argues we should extend the crime-fraud exception to torts
and conclude it applies to this case. “It is the purpose of the crime-fraud exception
to the attorney-client privilege to assure that the ‘seal of secrecy’ between lawyer
and client does not extend to communications ‘made for the purpose of getting
advice for the commission of a fraud’ or a crime.” United States v. Zolin, 491 U.S.
554, 563 (1989) (citations omitted). “Because the attorney-client privilege benefits
the client, it is the client’s intent to further a crime or fraud that must be shown.” In
re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 642 (8th Cir. 2001).
Kuehl asserts the crime-fraud exception would apply here because Doug
allegedly forwarded the email thread “in retaliation for [Kuehl’s] interview with
[IOSHA] in violation of Iowa Code [section] 88.9(3).”6 Kuehl claims that—by
forwarding the email thread—Doug made Kuehl aware that Kuehl’s cooperation
with IOSHA would not be tolerated and “communicated that if Kuehl complained
outside of Tegra again, he would be terminated.” But as the defendants point out,
Kuehl has presented no evidence besides his own speculation that Doug intended
to warn Kuehl against cooperation with IOSHA or making external complaints. See
Zolin, 491 U.S. at 564.
So even if we were to extend the crime-fraud exception to tort actions, it
would not apply here. Moreover, we think it best to leave any expansion of the
crime-fraud exception to our supreme court. Cf. Rosauer Corp. v. Sapp Dev.,
6 Iowa Code section 88.9(3)(a)(1) provides, “A person shall not discharge or in any
manner discriminate against an employee because the employee . . . has testified
. . . in any such [IOSHA] proceeding.”
12
L.L.C., 856 N.W.2d 906, 907 (Iowa 2014) (finding it appropriate for the court of
appeals to defer to the supreme court on whether to extend “implied warranty of
workmanlike construction”).
III. Summary Judgment
Finally we address Kuehl’s challenge to the summary judgment ruling
dismissing his wrongful-discharge claim.
A. Scope and Standard of Review
“We review summary judgment rulings for correction of errors at law.” Roll
v. Newhall, 888 N.W.2d 422, 425 (Iowa 2016). Summary judgment is appropriate
when the file shows “there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3).
“We review the evidence in the light most favorable to the nonmoving party.”
Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007).
B. Discussion
Kuehl claims the district court erred in granting summary judgment because
a jury could find that his “participation in the [IOSHA] interview and/or [his] repeated
internal safety complaints were the determining factor in his termination.” The
defendants retort, “Summary judgment is not a rehearsal; it was [Kuehl]’s time to
‘put up’ his evidence not mere allegations of a conspiracy premised on speculation
and attorney argument.”
Kuehl claims he was wrongfully discharged in violation of public policy. To
establish such a claim, Kuehl must establish: “(1) engagement in a protected
activity, (2) adverse employment action, and (3) a causal connection between the
two.” Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 300 (Iowa 1998).
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Only the third element is in dispute. “The causation standard in a common-law
retaliatory discharge case is high.” Id. at 301. To establish a causal connection,
a “plaintiff must show the protected conduct was the determining factor in the
adverse employment action.” Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 898
(Iowa 2015). “[A] determining factor is one that tips the balance in an employment
decision.” Id. “In order to be the determining factor, it is not necessary the
protected conduct be ‘the main reason behind the decision,’ but it must be the
factor that makes the difference in the employment outcome.” Id. (citation omitted).
So we examine the evidence to determine whether a reasonable fact finder could
conclude that either Kuehl’s participation in the IOSHA investigation or his safety
recommendations were the determinative factor in Tegra’s decision to terminate
him. See Teachout, 584 N.W.2d at 302.
Kuehl points to a statement Jim purportedly made shortly before Kuehl’s
termination wherein Jim said he was concerned he would also end up “sideways”
with Kuehl should another workplace accident occur. He highlights Jim’s concern
that Kuehl would “trash talk” Knepper at a trade conference. He claims these
statements give insight to Jim’s thinking. To the extent these statements provide
any insight, though, they do not provide support for Kuehl’s wrongful discharge
theory. Instead, if anything, they demonstrate Jim was concerned Kuehl was
combative and held animosity against his co-workers.
Kuehl also points to his concerns about the “near miss” on May 3, 2019,
and other times he reported safety issues. He claims the defendants were not
receptive to his concerns. But Kuehl does not provide any evidentiary support for
his assertion. To the contrary, the record shows that the defendants were
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receptive to Kuehl’s safety suggestions and implemented policies to address his
concerns.
He also notes Doug told him it was “time to knock the icicles off” his
relationship with Knepper. Kuehl contends his relationship with Knepper was
deteriorating due to his continued safety concerns. And to the extent he was
terminated due to his poor relationship Knepper, the root cause of the poor
relationship was Kuehl’s continued safety concerns. So he reasons they are “two
sides of the same coin.” But we think this claim ignores the obvious: the
relationship was deteriorating due to the manner in which Kuehl communicated his
safety concerns. He was the one who required communication be through email
or in the presence of the company vice-president. He was the one who called
Knepper names like “numb nuts” while at work.7 Kuehl cannot dress up
insubordination as protected conduct to immunize himself from negative
repercussions for his actions.
With respect to Kuehl’s participation in the IOSHA investigation, we agree
with the district court that Kuehl cannot establish causation between his interview
and termination. Because the content of Kuehl’s interview was confidential, the
defendants had no idea that Kuehl spoke out against Big Soo or its safety
practices. Cf. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 289 (Iowa
2000) (“[I]f the employer has no knowledge the employee engaged in the protected
activity, causation cannot be established.”). Nor did the defendants take steps to
7 Kuehl complains that Knepper wasn’t also blamed for going along with his
preferred communication method and Knepper did not take affirmative steps to
reconcile with Kuehl between March 2018 and February 2019. But we do not think
that creates a fact issue as to causation.
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try to discover the content of Kuehl’s interview. And Kuehl provides nothing more
than conjecture to suggest the defendants suspected him as the source of possible
“bogus” information provided during the investigation.
Considering the evidence in the light most favorable to Kuehl, we conclude
he failed to provide any evidence for a reasonable fact finder to conclude Kuehl’s
participation in the IOSHA investigation or his ongoing safety concerns were the
determinative factor in his termination. So we conclude the district court correctly
granted summary judgment.
AFFIRMED.