Davina Valdez v. West Des Moines Community Schools and Desira Johnson

IN THE SUPREME COURT OF IOWA
No. 21–1327
Submitted January 19, 2023—Filed June 30, 2023
DAVINA VALDEZ,
Appellant,
vs.
WEST DES MOINES COMMUNITY SCHOOLS and DESIRA JOHNSON,
Appellees.
Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.
Plaintiff appeals the judgment entered in favor of defendants on her Iowa
Civil Rights Act and common law claims. AFFIRMED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Megan C. Flynn (argued) of Flynn Law Firm, P.L.C., West Des Moines, and
Angela L. Campbell of Dickey, Campbell & Sahag Law Firm, P.L.C., Des Moines,
for appellant.
David T. Bower (argued) and Logan Eliasen of Nyemaster Goode, P.C., for
appellees.
2
OXLEY, Justice.
Davina Valdez, a teacher’s associate who worked with special education
students at West Des Moines Community Schools (the District), sued the District
and one of its teachers, Desira Johnson (collectively, Defendants), alleging
Johnson engaged in racial discrimination that led to Valdez’s constructive
discharge in violation of the Iowa Civil Rights Act (ICRA). At trial, the district
court concluded Johnson was not subject to individual liability under the ICRA
as a matter of law, and the jury returned a defense verdict in favor of the District.
Valdez now asks this court to grant her a new trial based on any of five alleged
errors, focusing primarily on two: that the district court should have granted her
Batson1 challenge to Defendants’ peremptory strike of the only Black potential
juror and that Johnson can be held personally liable for her constructive
discharge under our recent holding in Rumsey v. Woodgrain Millwork, Inc.,
962 N.W.2d 9, 33–37 (Iowa 2021). After careful consideration of Valdez’s
arguments, we affirm the district court.
I. Factual History.
Valdez began working for the District in 2015 as a special education
teacher’s associate. In her position, Valdez worked with other special education
associates in a classroom overseen by a special education teacher and worked
primarily with a single special needs student, C.O. In the fall of 2018, Valdez
1Batson v. Kentucky, 476 U.S. 79 (1986); see also Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 628–31 (1991) (extending Batson to civil cases).
3
followed C.O. as C.O. advanced grade levels, moving with her to Valley High
School.
The same year Valdez moved to Valley High, Jill Bryson became the
assistant principal in charge of special education. Bryson had performance
concerns with Kylene Simpson, the teacher overseeing Valdez’s classroom,
culminating in a separation agreement between Simpson and the District on
March 8, 2019. To round out the school year in Simpson’s place, Bryson enlisted
Jo Yochum to oversee Valdez’s classroom. Bryson also asked Johnson—another
special education teacher who oversaw a different classroom—to assist Yochum
in her new duties. It was at this point that the events precipitating Valdez’s
lawsuit began in earnest.
As the district court put it, “The change from Ms. Simpson to more
involvement from Ms. Johnson was not well-received by the associates in
Ms. Simpson’s classroom,” and “[a]ll of the associates and Ms. Yochum felt that
Ms. Johnson was micro-managing the classroom.” Valdez, though, felt
particularly singled out by Johnson. For instance, Valdez (who is Black) alleged
that on one occasion, Johnson (who is white) approached her and Toree Daniel
(another special education associate, who is biracial) and asked, “[W]hy would a
Black student call a white lady a[n] [N-word]?”—using the actual word rather
than the euphemism “N-word.”2 Valdez also complained that Johnson was
making changes to the classroom that negatively affected C.O., such as moving
2Johnson may not have phrased her question in precisely this manner when she posed
it to Valdez and Daniel, but it is not disputed that she used the full “N-word.”
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C.O.’s swing (something C.O. used to calm herself) to a different room in the
building without consulting Valdez and in an effort to harass or intimidate
Valdez.
After a meeting with Bryson and Principal David Maxwell, in which Valdez
was accused of “not being a team player,” Valdez filed a complaint with Carol
Seid, the associate superintendent for human resources (HR) for the District.
Valdez complained about Johnson announcing “she would be taking over the
classroom” despite Yochum being appointed to finish the school year, of “feel[ing]
completely harassed [and] singled out,” of “hav[ing] some physical sickness with
the thought of going to work,” and about changes in students’ behavior following
Johnson’s “tak[ing] over” the classroom.
Seid referred the complaint to Jesse Johnston—another District HR
employee—for investigation. While the investigation was ongoing, Valdez again
contacted HR, complaining that the harassment had not stopped and stating
that she felt “now more than ever discriminated against and work is more tense
and hostile than ever.” Johnston emailed Valdez on May 28 to discuss the results
of her investigation, which concluded Valdez’s complaints were unfounded, but
Valdez did not respond.
The same day, May 28, Valdez’s attorney emailed superintendent Lisa
Remy, alleging Valdez was being subjected to a hostile work environment based
on her race and retaliated against based on her complaints to HR. The letter
directed Bryson, Seid, and Johnson to avoid all contact with Valdez and
threatened litigation if a response was not received within a week. When the
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District eventually responded on June 25, it “offered to work with [Valdez] on a
reassignment to another supervisor or building within the district.” Valdez did
not respond to the District’s offer and tendered her resignation the next day,
June 26.
Valdez filed the instant lawsuit on December 13, asserting ICRA claims for
race-based discrimination, hostile work environment, unequal pay, and
retaliatory constructive discharge as well as a common law claim of wrongful
discharge in violation of public policy. See Iowa Code §§ 216.6, .6A, .11 (2019).
All of the counts were levied against the District and against Johnson in her
individual capacity.
The case proceeded to trial in April 2021 on Valdez’s claims of hostile work
environment and retaliatory constructive discharge under the ICRA and common
law wrongful discharge. At the close of evidence, the district court granted
Johnson’s motion for directed verdict, removing her as an individual defendant
from the case. The jury returned a verdict in the District’s favor on all counts.
Valdez appeals several of the district court’s rulings, arguing the court
erred by: (1) overruling her Batson challenge to Defendants’ peremptory strike of
Juror 13; (2) granting Johnson’s directed verdict motion; and (3) ruling in
Defendants’ favor on three evidentiary issues—admitting parts of the parties’
settlement correspondence from June 2019 (Exhibits B-11 and B-12), excluding
notes pertaining to the District’s investigation into Valdez’s harassment
complaints (Exhibit 6), and excluding evidence of an incident involving Johnson
and a student in Valdez’s classroom. We retained the appeal.
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II. Analysis.
A. Batson Challenge. In addition to challenging Defendants’ peremptory
strike of Juror 13 under the traditional Batson standard, Valdez asks us to revise
the standard for assessing peremptory challenges under the Iowa Constitution.
Applying the traditional Batson framework, we hold that the district court
properly overruled Valdez’s challenge. And for the reasons that follow, we
conclude that Valdez’s arguments for moving “beyond Batson” in the specific
ways she suggests are not compelled by the Iowa Constitution.
1. Did the District violate Batson in striking Juror 13? We review Batson
challenges de novo. State v. Veal, 930 N.W.2d 319, 327 (Iowa 2019). Analyzing
Valdez’s Batson challenge involves a three-step inquiry: (1) Valdez must establish
a prima facie case of purposeful racial discrimination in Defendants’ peremptory
strike; (2) Defendants must proffer a race-neutral explanation for the strike; and
(3) Valdez must carry the ultimate burden of proving purposeful discrimination,
which turns on whether the strike “was ‘motivated in substantial part by
discriminatory intent.’ ” Flowers v. Mississippi, 139 S. Ct. 2228, 2243–44 (2019)
(quoting Foster v. Chatman, 578 U.S. 488, 513 (2016)); see State v. Booker,
989 N.W.2d 621, 627 (Iowa 2023). Within our de novo review, “we give ‘a great
deal of deference’ to the district court’s evaluation of credibility when
determining” whether the strike was motivated by a discriminatory intent at this
final step. See Booker, 989 N.W.2d at 627 (quoting Veal, 930 N.W.2d at 327).
Juror 13, the only Black venire member, was struck by Defendants’ second
peremptory strike. In response to Valdez’s Batson objection, Defendants
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proffered three race-neutral reasons for the strike: (1) Juror 13 had management
experience but no experience with workplace complaints against him; (2) defense
counsel “did not have a good rapport” with him; and (3) his response to defense
counsel’s question about whether he could “start [the parties] out on equal
footing,” to which he replied, “Yes,” but then added, “But, I mean, something
happened” (this question-and-answer combination will be referred to as “the
parity question” for brevity). The court accepted these justifications and
overruled the Batson challenge.
Valdez raised the Batson issue again in her motion for a new trial. In
resistance, Defendants gave the same justifications for the strike and added two
new ones: (1) that Juror 13 “stated [his] belief that people are always ‘honest’ ”
in workplace complaint investigations, and (2) he was potentially familiar with
the trial judge based on his work with the Fifth Judicial District Department of
Correctional Services. The court again rejected the Batson challenge based on
the rapport and the parity question justifications and affirmed its earlier Batson
ruling despite finding that Defendants’ other justifications were “less
convincing.”
Given that all three prongs of the Batson challenge were fully developed
below, “the preliminary issue of whether [Valdez] ha[s] made a prima facie
showing [is] moot.” State v. Mootz, 808 N.W.2d 207, 218 (Iowa 2012) (quoting
Hernandez v. New York, 500 U.S. 352, 359 (1991)). Step two focuses on the facial
validity of the striking attorney’s explanation. Id. “Unless a discriminatory intent
is inherent in the [attorney’s] explanation, the reason offered will be deemed race
8
neutral.” Id. (alteration in original) (quoting Hernandez, 500 U.S. at 360). A
proffered justification “ ‘need not rise to the level justifying exercise of a challenge
for cause’ but must be race-neutral and ‘related to the particular case to be
tried.’ ” Veal, 930 N.W.2d at 334 (quoting State v. Griffin, 564 N.W.2d 370, 375
(Iowa 1997)). The justification need not be “persuasive, or even plausible” at this
stage. Mootz, 808 N.W.2d at 218 (quoting Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam)). “It is not until step three ‘that the persuasiveness of the
justification becomes relevant.’ ” Id. (quoting Purkett, 514 U.S. at 768).
Neither Juror 13’s response to the parity question nor his experience as a
manager is characteristic of any particular race. See, e.g., Booker, 989 N.W.2d
at 629 (concluding the effect of a juror’s “third-shift job on his ability to focus”
was race-neutral); Veal, 930 N.W.2d at 334 (holding that prosecutor’s striking “a
juror because the same prosecutor had sent her father to prison for the rest of
his life” is “a valid, race-neutral reason for” a strike). Whether an asserted “lack
of rapport” is facially neutral is a closer question, but the authorities Valdez cites
to support her contention that it is not facially neutral are inapposite. See George
v. State, 588 S.E.2d 312, 317–18 (Ga. Ct. App. 2003) (finding rapport
justification “too vague, subjective, nonspecific, and noncase-related to meet the
requirements of Batson,” without specifying whether the justification failed at
step two or three); State v. Weatherspoon, 514 N.W.2d 266, 269–70 (Minn. Ct.
App. 1994) (holding not only that the rapport explanation, “though troublesome,
constitutes a facially race-neutral explanation” at step two but also that the
Batson challenge in that case failed at step three as well). Without opining on
9
whether “rapport” justifications are always race-neutral at step two,3 we
conclude that given the development of the record about rapport in this case
(outlined below), it was facially neutral here. Cf. Batson v. Kentucky, 476 U.S. 79,
98 n.20 (1986) (“[T]he prosecutor must give a ‘clear and reasonably specific’
explanation of his ‘legitimate reasons’ for exercising the challenges.” (quoting
Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 258 (1981))).
Finally, at step three of the Batson inquiry, courts “must ‘decide whether
to believe the [attorney’s] explanation for the peremptory challenges,’ or whether
the reasons given are merely pretext for racial discrimination.” Booker,
989 N.W.2d at 630 (alteration in original) (quoting Mootz, 808 N.W.2d at 219).
We give great deference to the trial judge’s finding at this step since “whether
purposeful discrimination exists will largely turn on evaluation of credibility.”
State v. Knox, 464 N.W.2d 445, 448 (Iowa 1990); see also Booker, 989 N.W.2d at
630.
Defendants’ assertion that counsel lacked a good rapport with Juror 13 is
a perfect example of why we give such deference to trial courts. When
justifications such as a juror’s rapport or demeanor are raised, “the trial court
3Some judges and commentators have observed that subjective justifications for a strike,
such as rapport or demeanor, are particularly subject to influence from implicit biases since
“implicit biases can lead members of different races to perceive members of other races as lazy,
or hostile, or threatening” when identical words or conduct from a member of the same race
would not trigger the same impressions. Mark W. Bennett, Unraveling the Gordian Knot of Implicit
Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson,
and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 164 (2010); see Batson, 476 U.S. at 106(Marshall, J., concurring) (“A prosecutor’s own conscious or unconscious racism may lead him
easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization
that would not have come to his mind if a white juror had acted identically. A judge’s own
conscious or unconscious racism may lead him to accept such an explanation as well
supported.”).
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must evaluate not only whether the [striking counsel]’s demeanor belies a
discriminatory intent, but also whether the juror’s demeanor can credibly be said
to have exhibited the basis for the strike attributed to the juror by [counsel].”
Snyder v. Louisiana, 552 U.S. 472, 477, 479 (2008).
The attorneys should fully develop the record concerning the specific
behavior by venire members that motivated the peremptory
challenge, and the district court should assess the credibility of the
explanation. Because the district court is in the best position to
evaluate the truthfulness of an asserted explanation, its findings
should be accorded deference on appeal.
United States v. Jenkins, 52 F.3d 743, 746 (8th Cir. 1995) (citations omitted);
see also State v. Khoang, No. 98–2092, 1999 WL 1159027, at *5 (Iowa Ct. App.
Dec. 13, 1999) (citing Jenkins and using identical language).
The district court recognized the need for careful scrutiny here based on
the subjectiveness of the justification but ultimately concluded that the
justification was valid and not pretextual. The court explained:
[B]ased on my observation of the interaction between attorney and
juror, I understand counsel’s explanation. It is difficult to show on
the transcript, but the juror appeared to be measured or reticent
before or as responding to counsel’s questions. This is not a bad
trait, but it supports defense counsel’s belief that he might be a
questionable juror for her case.
We defer to the district court’s ruling that this justification was sincere and not
pretextual.
Aside from a lack of rapport with Juror 13, Defendants consistently
proffered—at trial, posttrial, and on appeal—Juror 13’s response to the parity
question as their “main” justification for the strike. The specific
question-and-answer exchange went as follows:
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[DEFENSE COUNSEL]: The other thing that -- again, I’m just
going to kind of ask you as a group for agreement. Does anybody
think that just because we’re here, we’re in this beautiful courtroom,
that it means that there’s something to this case? In other words,
you already feel like we must have done something wrong just
because we’re here?
Does everybody understand that we start out on equal
footing? Can everybody agree that they’re not going to put one side
above the other just because we’re here and we’re taking up
resources?
[Juror 13], you agree with that?
JUROR [13]: Yes. But, I mean, something happened. But what
it is, I guess you are trying to figure out.
In resistance to Valdez’s motion for a new trial, Defendants explained that
counsel followed up specifically with Juror 13 on this question because “the
entire panel nodded” in response except Juror 13. Defendants also explained
that Juror 13’s response “raised concern in defense counsel’s mind about [his]
ability to hear this case—or any case—with an open mind.” The court accepted
this justification and explanation, reasoning that although potentially “wholly
innocent,” Juror 13’s response “was not prompted by the question” and “could
make a defense attorney hesitant when considering her strikes.”
Again, given that the record could reasonably be interpreted as each party
urges, we defer to the district court’s determination that defense counsel’s
justification here was credible and not pretextual. Juror 13’s belief that
“something happened” could be, as the district court considered (but rejected), a
“wholly innocent” acknowledgment of the fact that “cases do reach trial for a
reason.” Or, it could evince a preconceived notion that Defendants did something
they should not have—a prejudice that defense counsel could reasonably have
12
believed she would have to work harder to overcome if Juror 13 was impaneled.
We will not disturb the trial court’s credibility finding here.
Like the district court, we find Defendants’ other justifications “less
convincing.” Defendants’ only other contemporaneous justification explained
that they struck Juror 13 because he had a long history of managerial experience
without having dealt with any employee complaints. But that justification was
not applied in a race-neutral manner. Five other jurors claimed some level of
management experience: Jurors 4, 5, 8, 12, and 14. No jurors reported having
had a complaint lodged against them in the workplace (including those who did
not report managerial experience), but only Juror 13 appears to have been struck
for this reason. Jurors 4 and 8 were both struck by Valdez,4 but neither party
challenged Jurors 5, 12, or 14—all three of whom ended up on the petit jury.
Juror 13 was thus treated differently by Defendants in this regard compared to
non-Black venire members. Caselaw provides this is sufficient to permit an
inference of, or provide some evidence of, discriminatory intent. See Foster,
578 U.S. at 512 (“[I]f a prosecutor’s proffered reason for striking a black panelist
applies just as well to an otherwise-similar nonblack [panelist] who is permitted
to serve, that is evidence tending to prove purposeful discrimination.” (second
alteration in original) (quoting Miller-El v. Dretke, 545 U.S. 231, 241 (2005))).
On our de novo review, we do not find the evidence here sufficient to show
that the strike was substantially motivated by discriminatory intent given the
4Juror 8 ultimately ended up on the jury, though, after an initially-selected juror was
excused for a health emergency.
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district court’s credibility findings.5 The strike was supported by two
justifications that the district court affirmatively credited as valid and
nonpretextual. A reviewing court’s “deference [to a trial court’s credibility
determination] is especially appropriate where a trial judge has made a finding
that an attorney credibly relied on demeanor in exercising a strike.” Snyder,
552 U.S. at 479. Here, the district court’s credibility determination was explicit
and detailed, noting its own observation of Juror 13’s behaviors that supported
Defendants’ perception of a negative rapport. The court also expressly recognized
that Juror 13’s response to the parity question would make Defendants
apprehensive of having him on the jury, rejecting Valdez’s assertion that those
apprehensions were rehabilitated by subsequent questioning.
5The district court stated in its posttrial ruling that despite finding some of Defendants’
justifications “less convincing,” it could uphold the strike of Juror 13 “as long as there is one
race-neutral ground for the strike,” citing Kiray v. Hy-Vee, Inc., 716 N.W.2d 193, 207 (Iowa Ct.
App. 2006). Kiray followed the lead of the United States Court of Appeals for the Eighth Circuit
in applying the same-decision defense to a Batson challenge where we had not addressed the
issue. See id. at 207 (holding that a peremptory strike does not violate Batson “as long as the
strike would have been exercised without the discriminatory reason” (citing Weaver v. Bowersox,
241 F.3d 1024, 1032 (8th Cir. 2001))). As the United States Supreme Court subsequently
recognized in Snyder v. Louisiana and in Foster v. Chatman, it has never “allowed the prosecution
to show that ‘a discriminatory intent [that] was a substantial or motivating factor’ behind a strike
was nevertheless not ‘determinative’ to the prosecution’s decision to exercise the strike.” Foster,
578 U.S. at 513 n.6 (alteration in original) (quoting Snyder, 552 U.S. at 485, and declining to
“decide the availability of such a defense” where it was not raised by the State). Whether or not
the Supreme Court would recognize a same-decision defense in a Batson analysis, had the
district court here relied only on its statement that finding one race-neutral ground for a strike
satisfied Batson, it would not even have met that standard absent a finding that the race-neutral
reason was the determinative factor. The totality of the district court’s ruling reveals it did not
rely solely on this statement but concluded that the strike was in fact not substantially motivated
by discriminatory reasons. See Flowers, 139 S. Ct. at 2244 (“The ultimate inquiry is whether the
[strike] was ‘motivated in substantial part by discriminatory intent.’ ” (quoting Foster, 578 U.S.
at 513)). For present purposes, we caution that finding a single race-neutral ground for a strike
does not relieve a district court from nonetheless determining whether the strike was
substantially motivated by discrimination.
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Valdez’s limited evidence of pretext, in light of Defendants’ other credible
and non-race-based explanations, does not establish that the strike was
motivated in substantial part by purposeful discrimination. See Batson, 476 U.S.
at 98 (“The trial court . . . will have the duty to determine if the defendant has
established purposeful discrimination.”); cf. Flowers, 139 S. Ct. at 2248(“[D]ramatically disparate questioning and investigation of black prospective
jurors [as compared to] white prospective jurors . . . strongly suggests that the
State was motivated in substantial part by a discriminatory intent.”). The district
court did not err in overruling Valdez’s Batson challenge.
2. Should we move “beyond” Batson under Iowa law? Valdez argues on
appeal that if we uphold the district court’s denial of her traditional Batson
challenge, then we should move “beyond Batson” by applying a heightened
standard to Batson challenges as a matter of Iowa constitutional law.
Peremptory strikes were designed to be “exercised without a reason stated”
for striking a juror, “without inquiry” into any reasons or motives for the strike,
“and without being subject to the court’s control.” J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127, 147–48 (1994) (O’Connor, J., concurring) (quoting Swain v.
Alabama, 380 U.S. 202, 220 (1965), overruled on other grounds by Batson,
476 U.S. 79). Essentially, parties can use their peremptory strikes for any reason
or no reason at all. See Mootz, 808 N.W.2d at 215 (“[A] peremptory challenge is,
by its very nature, a capricious and arbitrary statutory right . . . .”); see also Iowa
R. Civ. P. 1.915(7) (“Each side must strike four jurors” in a civil case). Although
that level of discretion opens the door to the kinds of discrimination that offend
15
constitutional principles, see Batson, 476 U.S. at 99 (“The reality of practice,
amply reflected in many state- and federal-court opinions, shows that the
[peremptory] challenge may be, and unfortunately at times has been, used to
discriminate against black jurors.”), the very nature of peremptory strikes is such
that they “must be exercised with full freedom, or [else] fail[] of [their] purpose,”
Mootz, 808 N.W.2d at 221 (quoting State v. Hunter, 92 N.W. 872, 874 (Iowa
1902)).
Batson therefore aims to remove racial bias from the peremptory strike
process without disturbing their discretionary character any more than
necessary. See Batson, 476 U.S. at 89 (“Although a prosecutor ordinarily is
entitled to exercise permitted peremptory challenges ‘for any reason at all, as
long as that reason is related to his view concerning the outcome’ of the case to
be tried, the Equal Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race or on the assumption that black
jurors as a group will be unable impartially to consider the State’s case against
a black defendant.” (quoting United States v. Robinson, 421 F. Supp. 467, 473
(D. Conn. 1976))). But by leaving the discretionary nature of peremptories intact
to the greatest extent possible, scholars observe, Batson’s utility in eliminating
all discrimination from jury selection is significantly limited. See Mark W.
Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The
Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and
Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 162 (2010) (“The promise of
Batson remains illusory for two reasons in particular: trial judges are reluctant
16
to doubt prosecutors’ proffered reasons for their challenged strikes, and
appellate courts are highly deferential to the trial courts’ decisions on these
matters.”); Tania Tetlow, Solving Batson, 56 Wm. & Mary L. Rev. 1859, 1888–89
(2015) (“Although peremptories allow us to root out bias that is subtle and
unstated, they also tend to skew the jury’s diversity and submit potential jurors
to the rank stereotyping complained of in Batson.”). As the Batson majority itself
observed: peremptory challenges are, after all, “a jury selection practice that
permits ‘those to discriminate who are of a mind to discriminate.’ ” 476 U.S. at
96 (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)).
Relying on these criticisms, Valdez offers two specific suggestions for
moving beyond Batson. First, we should adopt a higher standard for strikes of
“last minority” jurors as suggested by Justice Appel in his partial dissent in State
v. Veal by requiring trial-related justifications at Batson step two and an
objective, reasonable person analysis at Batson step three. See 930 N.W.2d at361–62 (Appel, J., concurring in part and dissenting in part). Second, we should
require courts to view the evidence in the light most favorable to the party
challenging the strike in assessing the proffered race-neutral reasons for a strike.
Valdez identifies article I, sections 1, 6, and 9 of the Iowa Constitution as
support for her request for us to move beyond Batson. But she does not explain
how the specific changes she requests are constitutionally mandated. We have
already rejected a similar request to apply a heightened analysis when a party
strikes the last minority juror. See id. at 334 (majority opinion) (declining the
defendant’s request to “adopt something like a cause requirement” when the
17
opposing party used a peremptory strike on the last Black juror as “contrary to
our precedent,” citing Griffin, 564 N.W.2d at 375–76, and Mootz, 808 N.W.2d at
218). To the extent that striking the last minority juror has enhanced
constitutional significance, its significance implicates fair-cross-section
concerns more than equal protection concerns; and even then, a party is not
constitutionally entitled to a petit jury (as opposed to a jury pool) of any particular
composition. See Holland v. Illinois, 493 U.S. 474, 482–83 (1990); State v. Mong,
988 N.W.2d 305, 311 (Iowa 2023) (“Our cases recognize the fair-cross-section
right extends only ‘to the jury pool’ and not to the jury panel or the petit jury.”
(quoting State v. Wilson, 941 N.W.2d 579, 593 (Iowa 2020))). Valdez does not
explain how such a procedure, particularly in the context of a civil trial, flows
imperatively from article I, sections 1, 6, or 9 of the Iowa Constitution.
We also decline to adopt Valdez’s request to require the evidence to be
construed in favor of the party challenging the strike, similar to a summary
judgment standard. In a summary judgment proceeding, evidence is considered
in the light most favorable to the nonmoving party as a basis for determining
whether there are any material facts in dispute for a factfinder to decide.
See, e.g., Smidt v. Porter, 695 N.W.2d 9, 15 (Iowa 2005) (“The question [at
summary judgment in a McDonnell Douglas burden-shifting case], after all, is
simply whether [the plaintiff] has introduced sufficient admissible evidence from
which a rational trier of fact could find [the defendant’s] alleged reasons for her
termination were false, and intentional discrimination was the real reason.”). But
once the evidence is presented to the factfinder for a final determination, the
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factfinder must necessarily decide the facts from the disputed evidence without
the summary judgment thumb-on-the-scale standard. Likewise, in a Batson
challenge, the district court must be free to evaluate the credibility of evidence
in determining whether a challenged strike was racially motivated. Indeed, “[t]he
trial court has a pivotal role in evaluating Batson claims” through its “evaluation
of the prosecutor’s credibility” in determining the ultimate issue of whether the
strike was discriminatory. Snyder, 552 U.S. at 477. Adopting Valdez’s
summary-judgment-type standard is not merely a “small nudge,” as she
suggests, but would effectively preclude the district court from even making
these credibility determinations if there was any evidence to the contrary. We do
not see how this furthers the Batson inquiry of identifying strikes premised on
racial discrimination. See Veal, 930 N.W.2d at 327 (noting the “great deal of
deference [we give] to the district court’s evaluation of credibility when
determining the true motives of the attorney” who made the strike (quoting
Mootz, 808 N.W.2d at 214)).
Many states have taken steps to address some of Batson’s perceived
shortcomings under state law—either replacing it with a framework better suited
to the task or tweaking it to give it more “teeth” in carrying out its mission.6
Contrary to Valdez’s request that we construe our state constitution to require
similar reforms, the bulk of movement in this area has come through legislative
6For a synopsis of recent Batson reform measures, see Berkeley L., Batson Reform: State
by State, https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic/projects-
and-cases/whitewashing-the-jury-box-how-california-perpetuates-the-discriminatory-
exclusion-of-black-and-latinx-jurors/batson-reform-state-by-state/ [https://perma.cc/ESV9-
C3WX].
19
or rulemaking processes, not through constitutional interpretation. Even
Washington, which has led the charge for Batson reform in both the rulemaking
and judicial arenas, did so gradually and with the benefit of input from the
rulemaking process. In State v. Saintcalle, the Washington Supreme Court
acknowledged what it perceived to be Batson’s shortcomings and its own
authority to adopt broader protections under the state constitution, but it
declined to do so there because the parties had not argued for a different
standard and because the court believed that such a rule change “might also be
best made through the rule-making process.” 309 P.3d 326, 337–39 (Wash.
2013) (en banc) (plurality opinion), abrogated by City of Seattle v. Erickson,
398 P.3d 1124, 1131 (Wash. 2017) (en banc) (adopting a bright-line rule that
striking the sole Black juror satisfied step one of a Batson prima facie case). After
Saintcalle, that court enacted Washington General Rule 37 to regulate challenges
to peremptory strikes, providing by rule many of the changes Valdez advocates
we take here. See Veal, 930 N.W.2d at 355–59 (Appel, J., concurring in part and
dissenting in part) (describing Washington cases and promulgation of
Washington General Rule 37); see also State v. Jefferson, 429 P.3d 467, 479–81
(Wash. 2018) (en banc) (effectively applying provisions of Washington General
Rule 37 retroactively to proceedings predating its effective date via state
constitution).
The foregoing measures have largely been taken by statute or rule. For
present purposes, we hold that the two “beyond Batson” approaches Valdez
seeks in this case are not mandated by the Iowa Constitution.
20
B. Directed Verdict on Individual Liability. Valdez named both the
District and Johnson in her individual capacity as defendants in each of the
claims that made it to trial, including her ICRA claims for hostile-work-
environment discrimination and retaliation and her common law claim of
wrongful discharge in violation of public policy. After the close of evidence, the
district court concluded there was no evidence from which the jury could find
that Johnson acted as Valdez’s supervisor, granting a directed verdict for
Johnson and removing her as a separate defendant from the case. We review
Valdez’s appeal from the order granting Johnson’s motion for directed verdict for
correction of errors at law.7 Rumsey, 962 N.W.2d at 20. “ ‘[W]e view the evidence
in the light most favorable to the nonmoving party to determine whether the
evidence generated a fact question’ that warranted submitting the issues to a
jury.” Id. (alteration in original) (quoting Yates v. Iowa W. Racing Ass’n,
721 N.W.2d 762, 768 (Iowa 2006)).
1. Individual liability under the ICRA. Valdez’s motion for a new trial made
two arguments challenging the directed verdict ruling: first, the jury could have
found from the evidence that Johnson was Valdez’s supervisor; and second, even
7On appeal, Valdez does not distinguish her retaliatory constructive discharge claim from
her ICRA hostile-work-environment claim and argues only that Johnson could be held
individually liable for creating a hostile work environment and for common law wrongful
discharge. As best we can discern, though, Valdez’s retaliation claim is premised on Johnson
furthering, or enhancing, the hostile work environment in retaliation for her complaints to HR.
We therefore focus our analysis only on the hostile-work-environment discrimination and
wrongful discharge claims and do not consider the scope of liability for retaliatory constructive
discharge generally under Iowa Code section 216.11. See Iowa R. App. P. 6.903(2)(g)(3). See Feld
v. Borkowski, 790 N.W.2d 72, 78 (Iowa 2010) (“Our obligation on appeal is to decide the case
within the framework of the issues raised by the parties. Consequently, we do no more and no
less.” (citation omitted)).
21
if not, Johnson could still be individually liable under the ICRA for creating a
hostile work environment. While Valdez’s motion was pending, this court decided
Rumsey, where we held that ICRA “liability for discrimination under section
216.6 or retaliation under section 216.11(2)” can extend to nonsupervisory
employees who are “personally involved in, and ha[ve] the ability to effectuate,
an adverse employment action[,] . . . assuming the other elements of each claim
are satisfied with respect to the individual defendant.” 962 N.W.2d at 36. The
district court concluded that Rumsey did not change the outcome in this case
with respect to Johnson’s individual liability and denied the new trial motion.
To begin, we agree with the district court that Valdez failed to present
evidence at trial to support a finding that Johnson exercised supervisory control
over Valdez. See id. at 35 (recognizing a supervisor as “hav[ing] the ability to alter
the terms of a subordinate’s employment”); Haskenhoff v. Homeland Energy
Sols., LLC, 897 N.W.2d 553, 573 (Iowa 2017) (recognizing supervisor harassment
as taking “a tangible employment action” or otherwise using power and authority
of position to engage in sufficiently harassing conduct to amount to adverse
employment action). Despite Valdez’s argument that Johnson “took over” the
classroom, the only evidence on the subject established that Johnson lacked
supervisory authority over Valdez. Yochum, not Johnson, was the long-term
substitute who took Simpson’s place as the teacher in the classroom where
Valdez served as a teacher’s associate. Bryson testified that Johnson was to be
given authority over Valdez’s classroom “the following school year,” but in the
interim, Johnson was only “the case manager for the students” in the classroom
22
and was providing support to Yochum to “help them get things situated.” But
even if Johnson had officially “taken over” Valdez’s classroom, there is still no
evidence that, in that position, Johnson could exercise supervisory authority
over Valdez (such as the ability to hire, fire, or take other tangible employment
actions) to give rise to individual liability as a supervisor. See Haskenhoff,
897 N.W.2d at 573; see also Cheshewalla v. Rand & Son Constr. Co.,
415 F.3d 847, 850–51 (8th Cir. 2005) (distinguishing between supervisors and
co-employees based on whether the harasser had the authority “to take tangible
employment action against the victim, such as the authority to hire, fire,
promote, or reassign to significantly different duties” (quoting Joens v. John
Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004))).
Next, we conclude that Rumsey does not alter Johnson’s individual liability
for Valdez’s hostile-environment-based ICRA claims. As a general matter, liability
under the ICRA is not limited to employers. An individual can also be personally
liable for employment discrimination, as evident from the ICRA’s broad
application to “any person.” Iowa Code § 216.6(1); see also Vivian v. Madison,
601 N.W.2d 872, 878 (Iowa 1999) (holding that a supervisory employee could be
subject to personal liability for unfair employment practices under Iowa Code
section 216.6). But until recently, we had not had occasion to delineate the
contours of ICRA liability beyond individuals holding supervisory positions. See
Rumsey, 962 N.W.2d at 34 (“We have not addressed individual liability under
ICRA beyond Vivian [v. Madison].”).
23
In Rumsey, we recognized that “[w]hile the statutory language applies
broadly to ‘any person,’ it also has limiting language.” Id. Rumsey involved claims
for failure to accommodate the plaintiff’s hearing impairment and for retaliation
that led to the plaintiff’s termination. Id. at 33. In the context of those claims, we
explained that the individual defendant “must have engaged in discriminatory
conduct that resulted in an adverse employment action” or “engaged in
retaliatory conduct . . . that materially and adversely injured or harmed the
plaintiff.” Id. at 34–35. The individual’s supervisory authority “to alter the terms
of a subordinate’s employment” generally “is neither sufficient nor necessary to
create liability.” Id. at 35. Ultimately, Rumsey held that in order to be liable, an
individual must both be personally involved in, and have the ability to effectuate,
the particular challenged discriminatory action. Id. at 36.
Rumsey turned on our interpretation of the explicit language of the ICRA.
See Rumsey, 962 N.W.2d at 34 (“We start with the language of the ICRA . . . .”).
But “[t]he Iowa legislature . . . did not expressly include a hostile-work-
environment provision in the ICRA.” Haskenhoff, 897 N.W.2d at 571 n.2 (citing
Iowa Code § 216.6(1)). Instead, “th[at] claim has been developed through our
caselaw, beginning in 1990, based expressly on Title VII precedent.” Id. Following
Title VII caselaw, we relied on the “otherwise discriminate” language in Iowa Code
section 216.6(1) to hold that the ICRA prohibits harassment that rises to the
level of creating or maintaining a hostile work environment. Lynch v. City of
Des Moines, 454 N.W.2d 827, 833 (Iowa 1990) (discussing the history of a
hostile-work-environment claim). Where the legislature did not expressly provide
24
for a hostile-work-environment claim in the statute, we approach with caution
Valdez’s argument that our holding in Rumsey necessarily means the district
court erred in failing to extend that case here.
Valdez’s attempt to bring her case in line with Rumsey by simply
substituting “hostile work environment” for “adverse employment action” cannot
be squared with the analysis in that case. That the ICRA textually applies to “any
person” cannot ignore that sections 216.6(1)(a) and 216.11 each create liability
for specific employment actions. Iowa Code §§ 216.6(1)(a), .11; see Rumsey,
962 N.W.2d at 34 (“While the statutory language applies broadly to ‘any person,’
it also has limiting language.”). Rumsey harmonized these aspects of the ICRA
by recognizing that liability does not turn on a person’s title within an
organization, but liability is still grounded in the person’s level of authority or
control with respect to the specific employment decision being challenged. See
Vroegh v. Iowa Dep’t of Corr., 972 N.W.2d 686, 706–07 (Iowa 2022) (“Our focus
centers on whether [the defendant] was in a position to ‘control’ or ‘effectuate’
the” challenged action.). Rumsey shifted the focus of the inquiry away from the
defendant’s authority or control over the plaintiff (i.e., whether the defendant
was the plaintiff’s supervisor) and toward the defendant’s authority or control
over the challenged employment action.
So, although “[t]he ‘any person’ language is not limited by title,” it is limited
by a requisite level of authority “to effectuate” the adverse employment action.
Rumsey, 962 N.W.2d at 35. And in the context of a hostile work environment,
the necessary authority for liability must include the authority to correct or
25
prevent an abusive working environment. That a defendant’s control must
extend at least that far in order to be held liable is reflected in the framework
underlying hostile-work-environment claims.
To prove a hostile work environment claim, the plaintiff must show she
was subjected to unwelcome “harassment [that] affected a term, condition, or
privilege of employment” on account of, as relevant here, her race. Haskenhoff,
897 N.W.2d at 571 (quoting Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 746 (Iowa
2006)). Harassment rises to the level of a hostile work environment “[w]hen the
workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’
. . . ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’ ” Id. (alteration and
omission in original) (quoting Farmland Foods, Inc. v. Dubuque Hum. Rts.
Comm’n, 672 N.W.2d 733, 743 (Iowa 2003)). An employer can be liable under the
ICRA for creating or maintaining a hostile work environment in two different
ways: through its own direct negligence or through vicarious liability for a
supervisor’s actions. See id. at 575. Under the first theory, a necessary element
of a direct negligence claim is the employer’s failure “to take prompt and
appropriate remedial action.” Id. (quoting Lynch, 454 N.W.2d at 833). Under the
second theory, although an employer can be vicariously liable for the actions of
its supervisors through an agency analysis where the employer’s liability is
premised on the supervisor misusing a position of authority, id. at 573–75
(discussing federal cases distinguishing between liability premised on an
employer’s direct negligence and vicarious liability for a supervisor’s actions), the
26
employer can avoid vicarious liability if it can show it “exercised reasonable care”
to promptly correct or prevent the harassing behavior and the plaintiff failed to
take advantage of the opportunities provided by the employer, id. at 573 (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). Under either theory
of liability, the focus is on allowing harassment to continue to the point of
“creat[ing] an abusive working environment” rather than just the fact of
harassment itself. Id. at 571 (quoting Farmland Foods, 672 N.W.2d at 743); cf.
Stricker v. Cessford Constr. Co., 179 F. Supp. 2d 987, 1015–16 (N.D. Iowa 2001)
(predicting that “to the extent that the Iowa Supreme Court would require . . . a
‘knew or should have known’ element to establish [a supervisor’s individual]
liability . . . the Iowa Supreme Court would require the plaintiffs to prove that
[the supervisor] knew or should have known of the harassment and failed to take
prompt remedial action”).
Nonsupervisory employees cannot “effectuate” a hostile working
environment because they are not responsible for creating or maintaining the
working environment and lack the authority to correct or prevent an abusive
environment. This analysis accords with the justifications for allowing recovery
for hostile-work-environment claims in the first place. As we explained in
McElroy v. State, “[W]hen an employer creates a hostile work environment,
employees are forced to ‘run a gauntlet of sexual [or here, racial,] abuse in return
for the privilege of being allowed to work and make a living . . . .’ ”
637 N.W.2d 488, 499 (Iowa 2001) (omission in original) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). This creates a situation where “the
27
employee must endure an unreasonably offensive environment or quit working.”
Id. at 499–500. But employees are not similarly held hostage where the hostile
environment is being caused by someone without any authority to actually
control the employee’s working environment or their employment. Giving the
employer an opportunity to correct the hostile actions of its employees is
therefore a critical aspect of what makes a hostile work environment an unfair
employment practice in the first place. Cf. Iowa Code § 216.6 (governing “[u]nfair
employment practices”). Recognizing ICRA liability without that crucial element
would turn the ICRA into a “general civility code for the American workplace,”
Haskenhoff, 897 N.W.2d at 588 (quoting Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53, 68 (2006)), under which any co-employee engaging in harassing
behavior could be held liable without the employer having been made aware of
the behavior and given an opportunity to correct it in the first place.
Accordingly, the district court did not err in granting the directed verdict
in favor of Johnson on Valdez’s ICRA hostile-work-environment claims.
2. Individual liability for wrongful discharge in violation of public policy. We
also reject Valdez’s argument that the district court erred in directing out
Johnson’s liability on Valdez’s common law claim of wrongful discharge in
violation of public policy. In Jasper v. H. Nizam, Inc., we held that individual
“liability for [wrongful discharge] can extend to individual officers of a corporation
who authorized or directed the discharge of an employee for reasons that
contravene public policy.” 764 N.W.2d 751, 776–77 (Iowa 2009). Our concern
was preventing the “individual officers and employees authorized to make
28
discharge decisions from [avoiding] liability for the underlying tortious conduct
in exercising that authority” by hiding behind the employer’s corporate
structure. Id. at 776. Valdez does not suggest that Johnson is an “officer of a
corporation” or even that Johnson “authorized or directed” her discharge.
Instead, she essentially asks us to extend Jasper beyond those facts, analogous
to what we did in Rumsey in relation to Vivian. See Rumsey, 962 N.W.2d at 34
(recognizing that while Vivian taught that ICRA liability extended at least to
supervisors, we had not addressed individual liability beyond that). Reasoning
from Jasper’s statement that “[t]he tort of wrongful discharge does not impose
liability for the discharge from employment, but the wrongful reasons motivating
the discharge,” 764 N.W.2d at 776, Valdez asserts individual liability against
Johnson is proper here because “both the wrongful activity and wrongful
motivations behind that activity (harassing behavior) were held by Johnson.”8
8Neither Defendants nor Valdez address on appeal the issue of whether a wrongful
discharge claim includes constructive discharge or whether it is limited to instances of actual
discharge. See, e.g., Strehlow v. Marshalltown Cmty. Sch. Dist., 275 F. Supp. 3d 1006, 1013 (S.D.
Iowa 2017) (“[T]he Iowa Supreme Court has never recognized a successful claim of constructive
discharge in violation of common-law public policy.”). The district court rejected the District’s
argument on this point in its summary judgment ruling, ultimately allowing the common law
wrongful discharge claim to go to the jury as against the District. And the jury’s verdict in the
District’s favor obviated a need for the District to challenge that ruling. Nor do Defendants
challenge Valdez’s reliance on the ICRA to supply the “clearly defined and well-recognized public
policy” required to support the claim. Jones v. Univ. of Iowa, 836 N.W.2d 127, 144 (Iowa 2013)
(quoting Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 300 (Iowa 2013));
see also Ferguson v. Exide Techs., Inc., 936 N.W.2d 429, 434–35 (Iowa 2019) (per curiam)
(“[W]hen the legislature includes a right to civil enforcement in the very statute that contains the
public policy a common law claim would protect, the common law claim for wrongful discharge
in violation of public policy becomes unnecessary.”); Grahek v. Voluntary Hosp. Coop. Ass’n of
Iowa, Inc., 473 N.W.2d 31, 35 (Iowa 1991) (affirming dismissal of wrongful termination claim that
was “indistinguishable from the civil rights claim” as preempted by the ICRA). For purposes of
this appeal, we limit our analysis of Valdez’s wrongful discharge claim to whether liability could
extend to Johnson.
29
Valdez’s broad formulation ignores the limitations we have imposed on the
common law tort. Unlike the ICRA, which extends liability beyond employers to
“any person,” Iowa Code § 216.6(1)(a), the focus of the wrongful discharge tort is
on the employment relationship. It places “limits [on] an employer’s discretion to
discharge an at-will employee when the discharge would undermine a clearly
defined and well-recognized public policy of the state.” Jones v. Univ. of Iowa,
836 N.W.2d 127, 144 (Iowa 2013) (emphasis added) (quoting Berry v. Liberty
Holdings, Inc., 803 N.W.2d 106, 109 (Iowa 2011)). Further, the claim is an
exception to the employment-at-will doctrine, and as an exception, we narrowly
construe its reach. See id. (describing the tort as a “narrow public-policy
exception”); Jasper, 764 N.W.2d at 762 (“[T]he tort of wrongful discharge should
exist in Iowa only as a narrow exception to the employment-at-will doctrine.”).
At a minimum, liability for this tort still turns on the scope of the
defendant’s authority in the workplace. In fact, we have never even recognized
the claim as against a mere supervisor who was not the employer’s alter ego, let
alone one who lacks discharge authority over the plaintiff. See Carver-Kimm v.
Reynolds, ___ N.W.2d ___, ___, 2023 WL 4140067, at *10 (Iowa June 23, 2023)
(“In the thirty-five years since we first recognized the tort in Springer v. Weeks &
Leo Co., 429 N.W.2d [558,] 560 [(Iowa 1988) (en banc)], we have never extended
it to include liability to those without authority to discharge the plaintiff
employee. We decline the invitation to do so today.”).
Jasper’s broad statements about the principles supporting liability for
wrongful discharge cannot be divorced from the parameters underlying the tort.
30
See Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 303 (Iowa
2013) (“We cautiously identify policies to support an action for wrongful
discharge under the public-policy exception . . . [to avoid] ‘unwittingly
transform[ing] the public policy exception into a “good faith and fair dealing”
exception, a standard we have repeatedly rejected.’ ” (quoting Fitzgerald v.
Salsbury Chem., Inc., 613 N.W.2d 275, 283 (Iowa 2000) (en banc))). They
certainly do not support extending its reach beyond those with authority to
discharge an employee, constructively or otherwise. We need not decide how
broadly individual liability for a wrongful discharge claim may extend. It is
enough to recognize that it does not extend far enough to hold Johnson liable in
this case. The district court did not err in directing a verdict in Johnson’s favor.
C. Evidentiary Rulings. Valdez also contends the district court made
three errors in ruling on evidentiary issues. “This court ‘generally review[s]
evidentiary rulings for abuse of discretion.’ ” State v. Rodriquez, 636 N.W.2d 234,
239 (Iowa 2001) (alteration in original) (quoting Williams v. Hedican,
561 N.W.2d 817, 822 (Iowa 1997)). “However, we review hearsay rulings for
correction of errors at law.” McElroy, 637 N.W.2d at 493; see also State v. Plain,
898 N.W.2d 801, 810 (Iowa 2017).
“[R]eversal is required for the improper admission or exclusion of evidence
only if the exclusion affected a substantial right of a party. In a case of
nonconstitutional error, ‘we presume prejudice—that is, a [party’s] substantial
right [was] affected—and reverse unless the record affirmatively establishes
otherwise.’ ” State v. Buelow, 951 N.W.2d 879, 890 (Iowa 2020) (citation omitted)
31
(quoting State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004)); see also Iowa R. Evid.
5.103(a); McGrew v. Otoadese, 969 N.W.2d 311, 325 (Iowa 2022); Eisenhauer ex
rel. T.D. v. Henry Cnty. Health Cntr., 935 N.W.2d 1, 19 (Iowa 2019).
1. Exhibits B-11 and B-12. Exhibits B-11 and B-12 were part of the
correspondence between Valdez’s attorney and the District before Valdez quit her
job. Valdez’s attorney sent a letter on May 28, 2019, which outlined Valdez’s
complaints, asserted that the District had provided “[n]o apparent solution” to
the alleged harassment and retaliation, and threatened litigation if a response
was not given within a set time. Valdez introduced this letter at trial as Exhibit
B-10. Valdez’s attorney sent a second letter to the District on June 17 (Exhibit
B-11), which highlighted Valdez’s unsuccessful previous request to transfer
away from Johnson to another position within the District, to show that Valdez
did “not believe that the District c[ould] protect her from further harassment and
retaliation.” It ended with an invitation to “negotiat[e] between the lawyers or
engag[e] in a mediation.” On June 25, the District sent a response (Exhibit B-12)
informing Valdez that it had investigated her complaints and could “see no legal
basis upon which it owe[d] [her] payment,” that it “welcome[d] the opportunity to
work with her” on a transfer away from Johnson, and that it would “vigorously
defend itself” if she chose “to pursue legal action.” The June letters were admitted
at trial as Exhibits B-11 and B-12 over Valdez’s objection. The district court
required the parties to redact the discussion of monetary settlements but allowed
these particular statements related to the parties’ openness to discussing
32
alternatives to litigation and the offer to transfer Valdez to another position
within the District to remain. The district court explained:
Plaintiff sought admission of the first letter from her attorney
[(Exhibit B-10)]. The other letters [(Exhibits B-11 and B-12)] may
never have come into evidence but for her desire to admit the first
letter. The other two letters were relevant for other purposes,
specifically plaintiff’s constructive discharge claim. She claimed that
she was denied transfers outside the building, which she attributed
to discrimination, harassment, and retaliation by defendants. This
was referenced in exhibit B-11. [The District] specifically offered to
work with her on a transfer in exhibit B-12. As a result, the letters
were offered for another purpose, which is allowed by Iowa R. Evid.
5.408(b).
Valdez contends that, even as redacted, Exhibits B-11 and B-12 should
have been excluded as settlement offers. Under Iowa Rule of Evidence 5.408,
“statement[s] made during compromise negotiations about [a] claim” are
inadmissible “to prove the validity or amount of a disputed claim” but are
admissible “for another purpose.” Iowa R. Evid. 5.408(a)(2), (b); see also Hyler v.
Garner, 548 N.W.2d 864, 869 (Iowa 1996) (“Rule [5.]408 requires the exclusion
of evidence of settlement negotiations offered solely to prove or disprove liability
or damages.”).
Valdez argues that admitting the settlement evidence to rebut the claim
that she had been constructively discharged is indistinguishable from rule
5.408’s impermissible use of settlement discussions to disprove the validity of
her disputed claim. See Iowa R. Evid. 5.408(a)(2). To the extent Defendants used
the letters to challenge the elements of Valdez’s prima facie constructive
discharge claim, they could be construed to be, “in a sense, offered to
demonstrate the ‘invalidity’ of [Valdez]’s claim”; if Defendants successfully rebut
33
the claim, they effectively “invalidate” it. PRL USA Holdings, Inc. v. U.S. Polo Ass’n,
520 F.3d 109, 114 (2d Cir. 2008) (rejecting argument that evidence supporting
a defense of estoppel by acquiescence was offered to prove the invalidity of the
plaintiff’s claim such as to fall within Rule 408’s prohibition even though, if
successful, the estoppel defense would defeat the plaintiff’s claim). But “[t]he
problem with [Valdez]’s clever argument is that it would deprive [r]ule [5.]408’s
exception of all meaning.” Id. If the concept of “validity” is viewed broadly enough,
all evidence could be said to be offered for the purpose of proving or disproving
the validity of a claim. If that were the case, “no evidence [would] fall[] within the
category whose exclusion is ‘not require[d]’ because it is ‘offered for another
purpose’ ”; the rule would swallow the exception. Id. (third alteration in original)
(quoting Fed. R. Evid. 408).
We have long recognized that “[t]he offer of settlement or compromise
exclusionary rule is designed to exclude this evidence only when it is tendered
as an admission of weakness of the other party’s claim or defense, not when it is
tendered to prove a fact other than liability.” Miller v. Component Homes, Inc.,
356 N.W.2d 213, 215 (Iowa 1984) (alteration in original) (quoting Pogge v.
Fullerton Lumber Co., 277 N.W.2d 916, 921 (Iowa 1979)). In Miller v. Component
Homes, the plaintiff was required to show his employer intentionally failed to pay
him as part of his Chapter 91A wage collection claim. Id. at 215–16. We held that
statements in a letter “demanding the $13,000 in commissions[, which] tended
to show that Component Homes had not inadvertently failed to pay him,” were
properly admitted because they “had probative value quite aside from any
34
consideration of admissions,” id. at 216—namely, supporting a specific element
of the plaintiff’s claim. See also Hyler, 548 N.W.2d at 869 (rejecting a rule 5.408
challenge where the proffered evidence was relevant to proving elements of the
plaintiffs’ rescission and attorney’s fee claims).
Here, the district court admitted Exhibits B-11 and B-12 because they
were relevant to rebutting the element of Valdez’s constructive discharge claim
requiring her to show the District refused to remedy the harassment she
complained about from Johnson. See Van Meter Indus. v. Mason City Hum. Rts.
Comm’n, 675 N.W.2d 503, 511 (Iowa 2004) (“Constructive discharge exists when
the employer deliberately makes an employee’s working conditions so intolerable
that the employee is forced into an involuntary resignation.” (quoting First Jud.
Dist. Dep’t of Corr. Servs. v. Iowa C.R. Comm’n, 315 N.W.2d 83, 87 (Iowa 1982)));
Haskenhoff, 897 N.W.2d at 592–93 (“The test for [intolerable working conditions
in a] constructive discharge [claim] is objective, evaluating whether a reasonable
person in the employee’s position would have been compelled to resign and
whether an employee reasonably believed there was no possibility that an
employer would respond fairly.”). Both letters rebutted her claim by documenting
the District’s contemporaneous offer to work with her on a transfer away from
Johnson. Allowing the evidence for this purpose was particularly apt in this case
where, as the district court reasoned, Valdez opened the door to Exhibits B-11
and B-12 when she proffered the first letter, Exhibit B-10. Valdez used Exhibit
B-10 as evidence that the District failed to correct the harassing behavior; the
35
District was entitled to introduce Exhibits B-11 and B-12 to show its efforts to
the contrary.
Valdez counters that even if rebutting the elements of her constructive
discharge claim was a permissible use under rule 5.408, Defendants’ “true
purpose” for introducing these exhibits was “to accuse [her] of a ‘set up’, in
essence, a sham lawsuit.” If truly used for that purpose, the exhibits might fall
within rule 5.408’s ambit to the extent that the jury is asked to infer that Valdez
knew her claim was not genuine. See Weems v. Tyson Foods, Inc., 665 F.3d 958,
966–67 (8th Cir. 2011) (recognizing that “[i]n certain circumstances, evidence of
a compromise offer may be admitted to show a party’s lack of good faith” but
holding that the settlement evidence offered in the case at issue was inadmissible
because the issue of the defendant’s “bad faith is inseparable from the issue of
liability”); 23 Charles Alan Wright & Victor Gold, Federal Practice and Procedure:
Evidence § 5303, at 197–98 (2d ed. 2018) [hereinafter Wright & Gold] (“[W]here,
in an action for abuse of process, the present plaintiff uses evidence of an offer
by the present defendant to settle the prior action for a pittance to show that the
defendant brought that prior action in bad faith, evidence of the settlement offer
is being offered to permit an inference as to the offeror’s belief in the invalidity of
her claim.”). But where there was also a permissible use for the exhibits, parsing
the permissible from the impermissible falls to the district court’s discretion. See
Gail v. Clark, 410 N.W.2d 662, 672 (Iowa 1987) (“[T]rial judge[s] should weigh
[the] need for [settlement] evidence against the potentiality of discouraging future
settlement negotiations.”); see also Hamilton v. Mercantile Bank of Cedar Rapids,
36
621 N.W.2d 401, 408 (Iowa 2001) (en banc) (“[The] decision whether to admit
proof of [a] settlement offer on alternate ground[s] [is] ‘committed to the
discretion of the trial court.’ ” (quoting Gail, 410 N.W.2d at 671)). There may be
some instances where the proffered purpose for a piece of evidence, though
distinct, is so intertwined with rule 5.408’s impermissible purposes that it
requires wholesale exclusion. See Trebor Sportswear Co. v. The Limited Stores,
Inc., 865 F.2d 506, 510 (2d Cir. 1989) (rejecting proffered use of settlement
evidence to prove compliance with the statute of frauds in a breach of contract
case “[s]ince the two questions [of statute of frauds compliance and breach of
contract] were so closely intertwined”); Gail, 410 N.W.2d at 672 (“[B]ecause the
evidence of the amount of settlement would have presented a danger of
substantial prejudice to the Gails, we hold that the district court did not abuse
its discretion in excluding evidence of Clark’s settlement agreement with the
Gails.”); 2 Robert P. Mosteller et al., McCormick on Evidence § 266 n.17, at 355
(8th ed. 2020) [hereinafter McCormick] (noting that in some situations a proffered
alternative use for settlement evidence “may be effectively too closely related [to
the rule’s prohibited purpose] to permit admission either under the direct
application of Rule 408 or in combination with the prejudicial impact of the
evidence under Rule 403”). But that decision, too, is for the district court to make
in the first instance. See PRL USA Holdings, Inc., 520 F.3d at 116 (“The exception
says only that ‘[t]his rule . . . does not require exclusion when the evidence is
offered for another purpose,’ Fed.[ ]R.[ ]Evid. 408 (2005) (emphasis added),
leaving the court wide discretion whether to admit or exclude.” (first alteration
37
and omission in original)); McCormick § 266, at 356 (“As in other situations where
evidence is admissible for one purpose but not for another, the probative value
for the proper purpose must be weighed against likelihood of improper use, with
due regard to the probable efficacy of a limiting instruction.”).
On our review of the record, we do not believe the district court abused its
discretion. Defendants’ argument that Exhibits B-11 and B-12 showed Valdez’s
constructive discharge claim was merely a “set up” was made primarily in pretrial
filings, including in resistance to Valdez’s motion in limine. But at the trial itself,
Defendants ostensibly used the letters for the purpose for which they were
admitted—to show that Defendants “offer[ed] [Valdez] exactly what she wanted:
[e]mployment with any other building or supervisor.” Although defense counsel
did make the “set up” accusation in closing arguments, that comment was made
in reference to Exhibit B-10—the letter Valdez introduced at trial.9
The district court did not abuse its discretion in admitting Exhibits B-11
and B-12.
2. Exhibit 6. Valdez next challenges the district court’s exclusion of
Exhibit 6, which contained notes pertaining to the District’s investigation into
Valdez’s complaints, including what appear to be notes from interviews of Valdez,
Johnson, and Bryson. The parties and the court agreed that the notes were likely
created by Jesse Johnston—the HR employee tasked with investigating Valdez’s
9That said, we caution that, in another context, an accusation similar to Defendants’ “set
up” accusation here could be construed as an impermissible attack on the validity of an opposing
party’s claim for purposes of Iowa Rule of Evidence 5.408. See Wright & Gold § 5303, at 193–94,
197–98 (“[E]vidence that plaintiff offered to settle is inadmissible to show plaintiff had doubts
about the validity of her case.”).
38
complaints—but the notes themselves do not identify Johnston as the author,
nor do they indicate clearly when the interviews they apparently document took
place. Because Johnston passed away before trial, she could not be called to
clarify these points.
The district court sustained Defendants’ objection to the exhibit as
inadmissible hearsay. Although Valdez argued that the exhibit was being offered
for the nonhearsay purpose of showing Defendants’ knowledge of Johnson’s
actions and Valdez’s complaints to support Valdez’s retaliation claim, the district
court did not pass on the argument. Instead, the court emphasized that its main
concern with Exhibit 6 was its reliability.
The district court’s analysis may have too quickly overlooked Valdez’s
proposed nonhearsay uses for Exhibit 6. Hearsay is defined as a statement, not
made at the trial or hearing at which it is being offered as evidence, offered to
prove the truth of the matter asserted. Iowa R. Evid. 5.801(c). That the notes
might not have been reliable does not affect whether they were being offered for
the truth of the matters stated in the notes or for a different, nonhearsay,
purpose. To the extent the district court sustained Defendants’ hearsay objection
without considering whether it was in fact hearsay, i.e., offered for the truth of
the matters asserted, the district court erred.
Nevertheless, we may uphold the court’s exclusion of Exhibit 6 if it “could
be held inadmissible on any theory.” Holmes v. Pomeroy, 959 N.W.2d 387, 391
(Iowa 2021). The district court’s reasoning and conclusion supports exclusion
under Iowa Rule of Evidence 5.403. Although neither the parties nor the district
39
court explicitly contemplated rule 5.403 when discussing Exhibit 6, the district
court’s focus on Exhibit 6’s reliability is more properly taken into account under
that rule. Cf. State v. Liggins, 978 N.W.2d 406, 421–31 (Iowa 2022) (considering,
and rejecting, defendant’s arguments that certain evidence was unreliable and
therefore inadmissible under rule 5.403 where the evidence “was not so
inherently unreliable that the district court abused its discretion by declining to
exclude it under” rule 5.403).
Rule 5.403 allows courts to exclude relevant evidence where that
evidence’s “probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Iowa R. Evid. 5.403. Reliability is
not directly relevant to this inquiry but can indirectly affect the enumerated
factors. For instance, the probative value of evidence may be substantially
diminished because of its unreliable nature. See State v. Cromer, 765 N.W.2d 1,
8–9 (Iowa 2009) (reasoning that because “[c]oercion diminishes the reliability of
an admission,” the coercive atmosphere in which the statements at issue were
made “tended to make the statements less probative of the ultimate issue,” and
they therefore should not have been admitted); see also United States v.
Tsarnaev, 142 S. Ct. 1024, 1037–39 (2022) (upholding district court’s exclusion
of evidence under statutory rule similar to rule 5.403 given that, where no one
could elaborate on the context of the evidence to “confirm or verify the relevant
facts, since all of the parties involved were dead,” it was “without any probative
value”). At the same time, unreliable evidence may risk introducing unfair
40
prejudice or confusion by creating “mini-trials” surrounding the contested
evidence. See Tsarnaev, 142 S. Ct. at 1039 (noting the “bare inclusion” of
unreliable evidence would have “risked producing a confusing mini-trial”).
As Defendants pointed out in challenging admission of the notes: without
Johnston’s help in interpreting Exhibit 6 (assuming the notes were in fact
Johnston’s), jurors would have been left to their own devices to, for example,
“decode who . . . [Johnston] was speaking to” in relation to specific notes or
whether the notes captured direct statements or merely Johnston’s impressions
of interviews. Embarking down that path may have protracted the trial while the
parties offered additional evidence to establish the declarant of specific
statements. And if, despite the potentially lengthy detour, jurors nevertheless
reached the wrong conclusion regarding who said what, they could have
improperly attributed statements to Johnson or Bryson. There were therefore
legitimate concerns over Exhibit 6’s probative value and its potential to confuse
jurors and cause unfair prejudice to Defendants.
Further, as the district court noted, much of what Valdez wanted to
establish through the exhibit was accomplished by other means: Valdez’s own
statements and complaints were admitted along with Johnston’s final report on
her investigation. Valdez’s counsel examined Johnson and Bryson extensively on
their contemporaneous emails and actions to establish that they knew about
Valdez’s complaints prior to June. At best, Exhibit 6 would have marginally
furthered the point Valdez sought to establish, but any marginal benefit to
Valdez’s case was not such as to make Exhibit 6’s exclusion prejudicial. See
41
Jenkins v. S. Farm Bureau Cas., 125 F. App’x 749, 752 (8th Cir. 2005) (per
curiam) (rejecting argument that “even though [Jenkins] was able to testify about
the contents of the policies-and-procedures manual at trial[,] he was prejudiced
by the exclusion of the manual”); see also SEC v. Shanahan, 646 F.3d 536, 548
(8th Cir. 2011) (“[A]ny abuse of discretion [in excluding cumulative evidence] was
not prejudicial.”).
We therefore hold that the district court did not abuse its discretion in
excluding Exhibit 6 because its probative value is substantially outweighed by
dangers of unfair prejudice, confusion, and presentation of cumulative evidence.
See Iowa R. Evid. 5.403. Further, any error was not prejudicial.
3. Pinching incident. Finally, Valdez contests the district court’s decision
to exclude evidence of an incident in which Johnson allegedly pinched a Hispanic
student. In September or October of 2019 (at least two months after Valdez left
her position with the district), a parent complained to Principal Maxwell that
Johnson pinched her son—a special needs student Valdez asserts she “had
observed Johnson mistreat [prior to this incident] and [who] was also part of the
basis for [Valdez’s] complaints to [District] administration about Johnson.”
Accordingly, Valdez sought to admit evidence of the pinching incident to buttress
her allegations of Johnson’s abusive behavior toward students (especially
students of color), of the District’s failure to take corrective actions on those
allegations, and of Johnson’s racial animus.
The district court excluded evidence of the pinching incident, reasoning:
[T]he incident involving the pinching of the student was not revealed
until a complaint was filed in the fall of 2019, well after [Valdez]
42
resigned. There is no evidence that [Valdez] or defendants were
aware of the incident until the complaint was filed. It may show
racial animus, but it is disconnected from the other events.
Defendants’ motion [to exclude the evidence] is granted on this
point.
In ruling on Valdez’s new trial motion, the district court summarily reaffirmed
its prior ruling without additional analysis.
Whether it is referred to as “prior acts” evidence, see Hamer v. Iowa C.R.
Comm’n, 472 N.W.2d 259, 262–63 (Iowa 1991), “similar acts” evidence, see
Kunkle Water & Elec., Inc. v. City of Prescott, 347 N.W.2d 648, 652–53 (Iowa
1984), or “me too” evidence (as the district court here characterized it by
reference to Salami v. Von Maur, Inc., No. 12–0639, 2013 WL 3864537, at *7–8
(Iowa Ct. App. July 24, 2013)), the district court did not abuse its discretion in
excluding this evidence. As a general matter, “[e]vidence of a discriminatory
atmosphere is relevant in considering a discrimination claim, and it ‘is not
rendered irrelevant by its failure to coincide precisely with the particular actors
or time frame involved in the specific events that generated a claim of
discriminatory treatment.’ ” Hamer, 472 N.W.2d at 262 (quoting Conway v.
Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987)); see also Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387–88 (2008) (disavowing per se rule
of exclusion for similar acts evidence in age discrimination case that would
require such evidence to involve the same supervisor). Nonetheless, the relevancy
of such evidence can be affected by “many factors, including how closely related
the evidence is to the plaintiff’s circumstances and theory of the case,”
Mendelsohn, 552 U.S. at 388, and whether it is “too remote or collateral [to the
43
plaintiff’s circumstances] such as to lead the jury astray,” Lund v. McEnerney,
495 N.W.2d 730, 734 (Iowa 1993). Relevant factors might include: “whether such
past discriminatory behavior by the employer is close in time to the events at
issue in the case, whether the same decisionmakers were involved, whether the
witness and the plaintiff were treated in a similar manner, and whether the
witness and the plaintiff were otherwise similarly situated.” Elion v. Jackson,
544 F. Supp. 2d 1, 8 (D.D.C. 2008).
Whatever particular factors a court uses to guide its analysis, “[t]he
admission of testimony regarding similar acts is ‘a question of trial court
discretion.’ ” Kunkle, 347 N.W.2d at 653 (quoting Team Cent., Inc. v. Teamco, Inc.,
271 N.W.2d 914, 921 (Iowa 1978) (en banc)). Here, the court weighed the
evidence and concluded that the pinching incident was too “disconnected from
the other events” involved in Valdez’s case. Valdez disagrees but does not show
that the district court’s reasoning is untenable. Cf. State v. Trane,
984 N.W.2d 429, 433–34 (Iowa 2023) (“[A] court abuses its discretion when its
decision is based on untenable grounds or it has acted unreasonably.” (quoting
State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005))). As such, we hold that the
district court did not abuse its discretion in excluding this evidence.
III. Conclusion.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.