IN THE SUPREME COURT OF IOWA
No. 14–0194
Filed June 30, 2015
Amended September 10, 2015
TERRI ALETA RIVERA,
Appellant,
vs.
WOODWARD RESOURCE CENTER and STATE OF IOWA,
Appellees.
Appeal from the Iowa District Court for Dallas County, Randy V.
Hefner, Judge.
A terminated employee appeals from a district court judgment
entered on a jury verdict in favor of her employer on her claim for
wrongful discharge in violation of public policy. AFFIRMED.
Jill M. Zwagerman and Bryan P. O’Neill (until withdrawal) of
Newkirk Zwagerman, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, Barbara E.B. Galloway, Assistant Attorney General, and
Timothy L. Vavricek (until withdrawal), Assistant Attorney General, for
appellees.
2
APPEL, Justice.
A terminated employee appeals from a district court judgment
entered on a jury verdict in favor of her employer on her claim for
wrongful discharge in violation of public policy. The employee contends
the district court submitted instructions to the jury that were legally
erroneous and confusing, and the district court should have granted her
motion for a new trial. Upon our review, we affirm the judgment of the
district court.
I. Factual and Procedural Background.
In late April 2006, Woodward Resource Center (WRC) hired Terri
Rivera as a residential treatment worker. WRC, operated by the Iowa
Department of Human Services, provides health and rehabilitation
services to children and adults with mental and physical disabilities.
WRC hired Rivera as a probationary employee for a six-month period but
terminated her employment within the probationary period on October 3.
On September 26, 2008, Rivera filed a wrongful discharge suit
against WRC and the State. 1 In her petition, Rivera claimed she was
terminated because she made complaints to WRC regarding suspected
patient abuse and asserted her discharge violated state public policy
established in Iowa Code chapters 135C and 235B. WRC contended it
terminated Rivera because she accrued three unscheduled absences.
After the resolution of issues related to exhaustion of
administrative remedies and an appeal to this court related to the
timeliness of the complaint under the applicable statute of limitations,
1We refer to the defendants collectively as WRC.
3
the case was remanded to the district court for further proceedings. 2
The case proceeded to trial on December 9, 2013.
At trial, Rivera testified she witnessed several incidents of patient
abuse at WRC. She claimed to have observed one of her coworkers
punch and push a patient. She also testified she saw a coworker force
one patient to eat mayonnaise until he gagged and eat a meal into which
he had just vomited. Rivera further told the jury that she was told the
same coworker had put jalapeno peppers, known as “hot sauce,” in the
individual’s eyes. Rivera testified she reported the abuse to her
supervisor and then reported it to her supervisor’s superior in September
2006.
Rivera testified that prior to her report of abuse she received good
feedback from her supervisor and was told she was doing a great job.
She further asserted she was given additional responsibilities as her
employment progressed.
Rivera claimed her report of abuse led to her termination. She
testified that when she began her employment at WRC, she was told that
if she wanted to make it through her probationary period, she should not
make complaints or she would be fired.
Regarding attendance, Rivera offered evidence that WRC did not
have a written policy related to three unscheduled absences for
probationary employees, but instead had a written policy that was
distributed and applied to all employees that allowed up to ten
unscheduled absences before termination and required progressive
discipline. She presented numerous attendance records of individuals
2See generally Rivera v. Woodward Res. Ctr., 830 N.W.2d 724 (Iowa 2013).
4
who were not fired after three absences during their probationary
periods.
WRC offered evidence challenging Rivera’s version of events,
including evidence that Rivera had three unscheduled absences during
her probationary period. WRC noted that during one of the unscheduled
absences, Rivera was seen attending a garage sale. According to WRC
administrators, WRC maintained a long-standing practice of terminating
probationary employees who had three unscheduled absences during
their probationary period. WRC offered evidence that attendance was
very important in a facility providing around-the-clock care and that
attendance was the primary factor in determining whether a
probationary employee would be retained.
WRC Treatment Program Administrator John Andorf testified he
determined termination was appropriate “given her three unscheduled
absences” and that the termination was not because of her report of
abuse. WRC also offered evidence that Rivera’s only report of abuse
related to the “hot sauce” incident, that the report was untimely under
WRC policies, and that, in any event, WRC investigated the incident and
found no abuse.
Before submitting the case to the jury, the district court crafted its
proposed jury instructions. Instruction No. 13 stated that in order to
recover on her claim, Rivera must prove, among other things, that her
making of “reports of suspected dependent adult abuse was the
determining factor in the decision to terminate her employment.” There
is no dispute with respect to Instruction No. 13.
Instruction No. 15 instructed the jury on the determining-factor
standard and gave rise to the fighting issues in this case. Instruction No.
15 stated:
5
The “determining factor” need not be the main reason
motivating the decision to terminate employment. The
determining factor need only be the reason which tips the
scales decisively one way or the other. If Woodward
Resource Center would have made the decision to discharge
Rivera even if she had not reported suspected dependent
adult abuse, the reports were not the determining factor in
the decision to terminate her employment. The reports were
not the determinative factor if Woodward Resource Center
had an overriding business reason for terminating Rivera’s
employment.
Instruction No. 15 also addressed the issue of pretext:
You may find that Rivera’s complaints were the
determining factor if Rivera has proved that Woodward
Resource Center’s stated reasons for its actions were not the
real reasons, but were pretexts to hide its motives. Pretext is
a stated purpose, reason, explanation, or motive offered by
an employer in order to cloak a discriminatory motive.
Pretext is simply one method of proof that you may consider.
Rivera objected to Instruction No. 15, stating:
[I]f we’ve already proven our case that the reason her
complaints of a dependent adult abuse were the determining
factor in the decision to fire her, then that encompasses it.
And then [WRC] get[s] to say but then they have an
overriding business justification, which I think then is a
burden shifting . . . . I think [the overriding business
justification] needs to be treated more like as an affirmative
defense . . . .
The district court stated its understanding of the objection: “Well,
if I understand your objection. You’re basically expressing the same
concern with use of the language ‘overriding business factor’ as
expressed by Judge Bennett in Hagen v. Siouxland Obstetrics.” In that
case, Judge Bennett questioned whether
an employer’s lack of an overriding business justification for
firing an employee is an independent element of a wrongful
discharge claim, or if that element is implicit in the
requirement that an employee’s protected conduct be the
determining factor in an employer’s decision to fire the
employee.
6
Hagen v. Siouxland Obstetrics & Gynecology, P.C. (Hagen I), 964 F. Supp.
2d 951, 972 (N.D. Iowa 2013). Rivera responded “Yes” to the district
court’s inquiry and the district court overruled Rivera’s objection to
Instruction No. 15.
The case was submitted to the jury, which returned a verdict for
WRC. Rivera filed a motion for a new trial, which the district court
denied. Rivera appealed.
In this appeal, Rivera challenges Instruction No. 15 on two
grounds. First, she claims the “overriding business reason” language in
the fourth sentence of Instruction No. 15 improperly shifted the burden
of proof and was confusing to the jury. Second, she claims the third
sentence of Instruction No. 15 amounted to a “same decision” theory 3
that has no place in a claim for wrongful discharge in violation of public
policy.
II. Standard of Review.
“We review the denial of a motion for new trial based on the
grounds asserted in the motion.” Fry v. Blauvelt, 818 N.W.2d 123, 128
(Iowa 2012) (internal quotation marks omitted). If the motion is based on
a legal question, our review is for correction of errors at law. Id. The
basis for the motion for a new trial in this case was an alleged error in
jury instructions, which we review for legal error. See Boyle v. Alum-Line,
Inc., 710 N.W.2d 741, 748 (Iowa 2006). Jury instructions “must convey
the applicable law in such a way that the jury has a clear understanding
of the issues it must decide.” Thompson v. City of Des Moines, 564
N.W.2d 839, 846 (Iowa 1997).
3Rivera describes her same-decision theory as involving an “employer admitting
that it used an improper purpose for firing [an] individual, [h]owever the employer then
justifies that it had a right to fire the employee because it would have made the same
decision to fire her based upon some other reason.”
7
Instructional errors do not merit reversal unless prejudice results.
DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009); Wells v.
Enter. Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004). Prejudice
occurs and reversal is required if jury instructions have misled the jury,
or if the district court materially misstates the law. DeBoom, 772 N.W.2d
at 5; Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268
(Iowa 2000).
III. Preservation of Error.
We first consider whether Rivera has preserved error with respect
to her challenges raised on appeal. There is no question that Rivera
preserved her challenge regarding the overriding-business-reason issue
arising out of the fourth sentence of Instruction No. 15. On appeal,
however, Rivera also challenges the third sentence of Instruction No. 15,
claiming that it amounts to a same-decision defense that has no place in
public-policy torts and is incorrect as a matter of law. Rivera argues that
but-for causation only requires the public-policy violation to be a “tipping
point” in the decision-making process, nothing more.
Based on our review of the district court record, we conclude that
the same-decision challenge was not preserved. While Rivera
emphasized the problems with the “overriding business reason” language
in sentence four of Instruction No. 15, Rivera identified no specific
problem with respect to the third sentence of the instruction beyond its
relationship to the alleged overriding-business-reason flaw. See Grefe &
Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994) (“[An] objection
must be sufficiently specific to alert the trial court to the basis for the
complaint so that if error does exist the court may correct it before
placing the case in the hands of the jury.”); see also Lynch v. Saddler,
656 N.W.2d 104, 110–11 (Iowa 2003) (same); cf. Iowa R. Civ. P. 1.924
8
(noting objections to jury instructions must specify the “matter objected
to and on what grounds”).
IV. Overview of Issues Presented on Appeal.
In her challenge to Instruction No. 15, Rivera maintains that a
plaintiff seeking to prove wrongful discharge in violation of public policy
does not need to prove that the employer lacked an overriding business
justification. In support of her argument, Rivera cites Iowa Civil Jury
Instruction 3100.1, which in turn cites Smith v. Smithway Motor Xpress,
Inc., 464 N.W.2d 682 (Iowa 1990), and Springer v. Weeks & Leo Co., 429
N.W.2d 558 (Iowa 1988). Iowa State Bar Ass’n, Iowa Civil Jury
Instruction 3100.1 (2012). Iowa Civil Jury Instruction 3100.1 does not
contain an overriding-business-justification element. See id.
From this premise, Rivera argues the fourth sentence of the
instruction improperly shifted the burden of proof to her to show the
employer lacked an overriding business justification for her termination.
While recognizing that the element of an overriding business justification
has been referred to in some of our cases, see, e.g., Davis v. Horton, 661
N.W.2d 533, 535–36 (Iowa 2003) (citing Fitzgerald v. Salsbury Chem.,
Inc., 613 N.W.2d 275, 281–82 & n.2 (Iowa 2000)), Rivera argues the
element is not appropriate in light of the heightened but-for burden of
causation that this court has required in wrongful-discharge-in-violation-
of-public-policy claims, see, e.g., Teachout v. Forest City Cmty. Sch. Dist.,
584 N.W.2d 296, 301 (Iowa 1998). Rivera traces the derivation of the
overriding-business-justification element to a treatise writer, Professor
Henry H. Perritt, Jr. See 2 Henry H. Perritt, Jr., Employee Dismissal Law
and Practice § 7.24, at 66–67 (4th ed. 1998) [hereinafter Perritt I]. She
contends Professor Perritt clarified his position in later versions of his
treatise to note that the fourth element is only applicable in cases in
9
which the employer concedes the wrongful motive played a part in the
employment decision. See Henry H. Perritt, Jr., Employee Dismissal Law
and Practice § 7.08, at 7-100.1 (5th ed. 2008 & Supp. 2014) [hereinafter
Perritt II].
Rivera notes the issue was extensively reviewed in Hagen I. In
Hagen I, the United States District Court for the Northern District of Iowa
canvassed the development of Iowa law regarding wrongful discharges in
violation of public policy. 964 F. Supp. 2d at 972–76. The court noted
that under Iowa law, the causation requirement in a wrongful-discharge-
in-violation-of-public-policy claim is a heightened “determining factor”
standard rather than a lower “motivating factor” standard ordinarily
utilized in civil rights claims. Id. at 975–76. In light of the heightened
causation standard, the court concluded the lack of legitimate business
justification was not an additional element in the plaintiff’s case. Id. at
976. Although the court certified the question to this court, we declined
to rule because we were equally divided on the question of whether a
public policy was implicated in Hagen I. See Hagen v. Siouxland
Obstetrics & Gynecology, P.C. (Hagen II), No. 13–1372, 2014 WL 1884478,
at *1 (Iowa May 9, 2014) (per curiam).
WRC responds by noting that under our caselaw, the plaintiff must
show a lack of legitimate business reason. WRC cites a number of Iowa
cases which include a business justification element. See Jasper v. H.
Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009); Fitzgerald, 613 N.W.2d at
282 n.2. In any event, WRC maintains the instruction was not reversible
error because it did not misstate the law or confuse the jury.
To resolve Rivera’s challenge to Instruction No. 15, we must engage
in a two-step inquiry. The first question is whether, as a matter of law,
the plaintiff in a wrongful-discharge-in-violation-of-public-policy case
10
must prove the employer lacked a legitimate business justification for the
termination. If a plaintiff must make such a showing, Rivera has not
been harmed by the instruction. Second, if we decide a wrongful-
discharge-in-violation-of-public-policy plaintiff is not required to show
the employer lacked a legitimate business justification as an element of
the claim, we must examine the instruction in this case to determine if it
was legally flawed and, if so, whether reversible error occurred.
V. Elements of Wrongful-Discharge-in-Violation-of-Public-
Policy Claim.
A. Oscillating Elements of Claim in Iowa Caselaw.
1. Elements of claim in Iowa cases through Fitzgerald and the
development of Iowa Civil Jury Instructions Chapter 3100. In Springer, we
first held an at-will employee in Iowa could not be terminated for reasons
contrary to public policy. 429 N.W.2d at 560–61. Since Springer, we
have found multiple public policy rationales may support a wrongful
termination claim of at-will employees in a variety of settings. See, e.g.,
Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 303–
06 (Iowa 2013) (reporting violations of law regarding health and safety of
patients in an assisted living facility); Jasper, 764 N.W.2d at 766–67
(finding sufficient public policy rationale in administrative rule regarding
ratio of children to daycare providers); Fitzgerald, 613 N.W.2d at 286–88
(refusing to commit or suborn perjury); Teachout, 584 N.W.2d at 300–01
(reporting of child abuse); Tullis v. Merrill, 584 N.W.2d 236, 239 (Iowa
1998) (complaining that company was not paying insurance benefits);
Lara v. Thomas, 512 N.W.2d 777, 782 (Iowa 1994) (pursuing
unemployment benefits).
11
In this case, however, the public policy element of a wrongful
discharge claim is not contested on appeal. The questions in this appeal
relate only to the causation element of a wrongful discharge claim.
We addressed the causation element of a wrongful-discharge-in-
violation-of-public-policy claim in Smith. 464 N.W.2d at 686. In Smith,
we held the unlawful purpose must be the determining factor behind the
discharge. Id. We noted a determining factor “need not be the main
reason behind the decision.” Id. Rather, the unlawful purpose “need
only be the reason which tips the scales decisively one way or the other.”
Id.
Eight years later, in Teachout, we considered the elements of a
wrongful-discharge-in-violation-of-public-policy claim, and the causation
requirement in particular. 584 N.W.2d at 299–303. We stated that in
order to recover damages for termination of employment in violation of
public policy, the “plaintiff must establish (1) engagement in a protected
activity, (2) adverse employment action, and (3) a causal connection
between the two.” Id. at 299. Our statement of the elements in Teachout
did not require the plaintiff prove the employer lacked a reasonable
business justification. See id.
With respect to causation, we stated “[t]he causation standard in a
common-law retaliatory discharge case is high.” Id. at 301. We noted
the “engagement in protected conduct must be the determinative factor”
in the adverse employment decision. Id. at 301–02 (emphasis in original)
(citing Smith, 464 N.W.2d at 686). Further, we expressly overruled court
of appeals precedent equating a determining factor with a predominant
factor. Id. at 302 n.2. We stated that a factor is determinative if it “tips
the scales decisively one way or the other, even if it is not the
12
predominant reason behind the employer’s decision.” Id. at 302 (internal
quotation marks omitted).
In Phipps v. IASD Health Services Corp., we demonstrated
application of causation principles in a wrongful-discharge-in-violation-
of-public-policy case. 558 N.W.2d 198, 202–03 (Iowa 1997). In that
case, we affirmed summary judgment for an employer when the
employee’s only evidence that protected conduct was linked to his
discharge was the fact that he was fired one month after he filed a
grievance questioning the legality of his employer’s conduct under the
Iowa Wage Payment Collections Act. Id. at 201, 203. We found the
record contained evidence of unacceptable performance and repeated
disciplinary problems, which we characterized as legitimate reasons for
the employee’s discharge. Id. at 203. As a result, the Phipps court
considered legitimate reasons for discharge as evidence that could be
used to determine whether the protected conduct was the determining
factor in the discharge. Id. If the purported reasons were not opposed
by substantial evidence to the contrary, they could be outcome
determinative. Id.; see also Teachout, 584 N.W.2d at 303 (finding
insufficient evidence of retaliation and evidence that there was a
personality conflict between assistant and supervising teacher).
When the Iowa State Bar Association developed its Iowa Civil Jury
Instructions in chapter 3100 related to wrongful-discharge-in-violation-
of-public-policy actions, it relied upon the Smith case. See Iowa State
Bar Ass’n, Iowa Civil Jury Instruction ch. 3100. It included a causation
requirement that the protected conduct be the determining factor in the
adverse employment action. Id. No. 3100.1. With respect to the
determining factor, Instruction 3100.3 stated, “A determining factor need
13
not be the main reason behind the decision. It need only be the reason
which tips the scales decisively one way or the other.” Id. No. 3100.3.
The notion that the lack of a legitimate business justification might
be an element of the plaintiff’s case first appears in our cases in
Fitzgerald. 613 N.W.2d at 282 n.2. In Fitzgerald, the court considered
whether a wrongful discharge claim could be brought based upon a
public policy favoring truthful testimony. Id. at 285. We concluded
Iowa’s statutes against perjury and the suborning of perjury provided a
public policy rationale sufficient to support a wrongful termination
action. Id. at 286.
We then proceeded to consider whether the evidence in the case
related to causation was sufficient to survive summary judgment. Id. at
289. We cited Teachout for the proposition that protected conduct “must
be the determinative factor in the decision to terminate the employee.”
Id. (citing Teachout, 584 N.W.2d at 301–02). As in Teachout, we
characterized the standard of causation as “high.” Id.; see also Teachout,
584 N.W.2d at 301. We also recognized, as in Teachout and Phipps, that
“the existence of other legal reasons or motives for the termination are
relevant in considering causation.” Fitzgerald, 613 N.W.2d at 289; see
also Teachout, 584 N.W.2d at 303; Phipps, 558 N.W.2d at 203. Based on
our review of the record, we concluded there was sufficient evidence to
preclude summary judgment. Fitzgerald, 613 N.W.2d at 289.
In Fitzgerald, we included a footnote suggesting for the first time in
our caselaw that there may be an overriding-business-justification
element to wrongful-discharge-in-violation-of-public-policy cases. Id. at
282 n.2. In footnote 2, we noted “[s]ome courts are beginning to
articulate the elements of a cause of action for wrongful discharge” as
including four elements, including an element that the “[e]mployer lacked
14
an overriding business justification for the dismissal (the absence of
justification element).” Id. We cited cases from two other jurisdictions,
Gardner v. Loomis Armoured Inc., 913 P.2d 377, 382 (Wash. 1996) (en
banc), and Collins v. Rizkana, 652 N.E.2d 653, 657 (Ohio 1995). Id. We
noted Professor Perritt advocated the approach in his academic writings.
Id. at 282 & n.2; see also Perritt I § 7.9, at 17–19; Henry H. Perritt, Jr.,
The Future of Wrongful Dismissal Claims: Where Does Employer Self
Interest Lie?, 58 U. Cin. L. Rev. 397 (1989) [hereinafter The Future of
Wrongful Dismissal Claims]. We did not expressly adopt the approach,
but stated it was “a helpful guide and actually parallels the approach we
have followed in addressing the tort on a case-by-case method.”
Fitzgerald, 613 N.W.2d at 282 n.2. The bottom line is that in Fitzgerald,
we cited and applied the three elements of wrongful discharge from
Teachout, but suggested in a footnote that there was some authority for a
fourth element, lack of an overriding business justification. Id. at 281 &
282 n.2.
2. Elements of claim in Iowa cases after Fitzgerald. The discussion
in the Fitzgerald footnote resurfaced in Davis. See 661 N.W.2d at 535–
36. In Davis, we considered whether participating in a mediation process
and hiring an attorney was protected conduct that could give rise to a
wrongful-discharge-in-violation-of-public-policy claim. Id. at 536. The
case involved an employee in a county treasurer’s office who had
difficulties with the elected county treasurer. Id. at 534–35. She
requested and received formal mediation, but was placed on probation
and demoted after the mediation session. Id. at 535. She then hired an
attorney to contest the demotion. Id. About a month later, she was
fired. Id.
15
In Davis, we discussed the four-element test from the Fitzgerald
footnote in the body of the opinion and declared the wrongful-discharge-
in-violation-of-public-policy tort had four elements. Id. at 535–36 (citing
Fitzgerald, 613 N.W.2d at 282 n.2). We rejected the notion that
participation in mediation was protected conduct that could give rise to a
wrongful-discharge-in-violation-of-public-policy claim. Id. at 536. With
respect to the claim that hiring counsel was protected conduct, we stated
that “on the facts of the present dispute it is clearly impossible to
separate [the plaintiff’s] act in hiring an attorney from her act in
challenging a personnel decision made by her employer” and that the
“act should not be insulated from sanction merely because it has been
carried out through an attorney.” Id.
We again cited the Fitzgerald formulation of the elements of a
wrongful-discharge-in-violation-of-public-policy claim in Lloyd v. Drake
University, 686 N.W.2d 225, 228 (Iowa 2004) (citing Fitzgerald, 613
N.W.2d at 282 n.2). Interestingly, in Lloyd, we stated the four-element
Fitzgerald approach was in accord with the three-element Teachout
approach. Id. However, we did not address the causation question, and
only addressed the question of whether a discharge for attempting to
uphold the criminal laws of the state may be a violation of public policy.
See id. at 229.
Finally, in Jasper, we again cited the Fitzgerald formulation as
stating the elements of a wrongful-discharge-in-violation-of-public-policy
claim. Jasper, 764 N.W.2d at 761 (citing Fitzgerald, 613 N.W.2d at 282
n.2). However, in Jasper, as in Lloyd, we were not called upon to
consider any issues related to the putative fourth element of the cause of
action. See id. (addressing only the public policy and evidence proving
causation elements).
16
3. Hagen I, II, and III. Against this backdrop of Iowa authority, the
United States District Court for the Northern District of Iowa wrestled
with the question of elements of a wrongful-discharge-in-violation-of-
public-policy claim in Iowa. In Hagen I, the plaintiff physician claimed he
was wrongfully discharged in violation of public policy because
(a) [he] report[ed], stat[ed] an intention to report, or
[stat]ed that he might report, to a hospital, conduct of nurses
that [he] believed may have involved wrongful acts or
omissions;
(b) [he] disclos[ed] to a patient or a patient’s family that
the patient may have been the victim of negligent care or
malpractice; or
(c) [he] consult[ed] with an attorney, stat[ed] an
intention to consult with an attorney, or stat[ed] that he
might consult with an attorney, about whether another
doctor or nurses had committed wrongful acts of omissions
that [he] should report to the Iowa Board of Medicine or a
hospital.
964 F. Supp. 2d at 956.
In Hagen I, the district court certified the following question to this
court:
Under Iowa law, is an employer’s lack of an “overriding
business justification” for firing an employee an independent
element of a wrongful discharge claim, or is that element
implicit in the element requiring that an employee’s
protected activity be the determining factor in the employer’s
decision to fire the employee?
Id.
In its discussion of the question of lack of business justification
under Iowa law, the district court recognized the formulation of
Fitzgerald and its progeny contained four elements for wrongful-
discharge-in-violation-of-public-policy claims, including lack of business
justification. Id. at 975. Yet, the district court reasoned that the
“business justification element” was implicit in the determining factor
17
analysis of causation. Id. at 974. According to the district court, other
legitimate business reasons could prevent the protected conduct from
tipping the scale and thus being a determining factor in the adverse
employment action. Id. However, the district court went on to explain:
Nothing in Iowa law supports the proposition that merely
having an alternative business reason for firing an employee
can insulate an employer from a wrongful discharge claim
where the evidence shows that the reason that actually
tipped the scales toward firing that employee violates public
policy.
Id. at 974–75 (emphasis in original).
The district court then examined the derivation of the four-element
test cited in Fitzgerald and subsequent cases. Id. at 975–76. The district
court traced the four-element test starting from Jasper through
Fitzgerald to the Gardner and Collins cases cited in the Fitzgerald
footnote. Id. As acknowledged in Fitzgerald, the district court found
these cases derived their analysis from the writings of Professor Perritt.
Id. at 975.
The district court then turned its attention to the writings of
Professor Perritt and his seminal law review article in which he presented
the elements of a wrongful-discharge-in-violation-of-public-policy action,
including the fourth element of lack of legitimate business justification.
Id. at 975 (citing The Future of Wrongful Dismissal Claims, 58 U. Cin. L.
Rev. at 398–99). The district court pointed out, however, that in
Professor Perritt’s formulation, the third element of wrongful discharge,
the element related to causation, differed materially from Iowa law. See
id. at 975–76. Under Professor Perritt’s approach, causation need only
be a motivating factor for the adverse employment action, while under
Iowa law protected conduct must be the determining factor. Id.; cf. The
Future of Wrongful Dismissal Claims, 58 U. Cin. L. Rev. at 399 (describing
18
the causation element as: “[t]he plaintiff’s dismissal was motivated by
conduct related to the public policy”).
In the law, such distinctions and nuances matter. As explained by
the district court, under a motivating-factor standard of causation, a
plaintiff could prevail when protected conduct was a motivating factor
even if the determining factor was the legitimate business reason. See
Hagen I, 964 F. Supp. 2d at 976. Thus, an additional element may make
some sense in preventing such an untoward result. Id. The district
court reasoned that because of Iowa’s use of the higher and more
demanding determining-factor standard, the fourth element in the Perritt
formulation should not be regarded as a separate element under Iowa
law but as implicit in Iowa’s causation standard. Id. Because the
district court conceded that Iowa law was not clear on the point,
however, it certified the question to us. Id. We divided evenly on the first
question of whether the plaintiff presented conduct protected by public
policy, however, and we declined to answer the other questions posed by
Judge Bennett. See Hagen II, 2014 WL 1884478, at *1. On remand, the
federal district court denied all claims for relief based upon instructions
that did not require the plaintiff to prove lack of legitimate business
reason as a separate element. Hagen v. Siouxland Obstetrics &
Gynecology, P.C. (Hagen III), 23 F. Supp. 3d 991, 1009 (N.D. Iowa 2014).
B. Discussion of Elements of Wrongful-Discharge-in-Violation-
of-Public-Policy Claims. The above discussion reveals that our
precedents in this area are not surefooted. Prior to Fitzgerald, there was
no suggestion of a fourth element in a wrongful-discharge-in-violation-of-
public-policy case. See Teachout, 584 N.W.2d at 299. While footnote 2
in Fitzgerald was elevated into the text in our subsequent cases, the
question of whether an employee proved a lack of legitimate business
19
justification was not explicitly an issue in these later cases. See Jasper,
764 N.W.2d at 761; Lloyd, 686 N.W.2d at 228–29; Davis, 661 N.W.2d at
535–36. Further, we declared that the four elements of wrongful
discharge contained in the Fitzgerald footnote were parallel to our public
policy tort cases, which was not quite correct. See Lloyd, 686 N.W.2d at
228. Language in our earlier cases, never disowned, indicate that a
plaintiff may prevail in a wrongful-discharge-in-violation-of-public-policy
case even if the protected conduct is not the primary factor, but is
nevertheless the determining factor, causing the adverse employment
action. See Teachout, 584 N.W.2d at 302 n.2; Smith, 464 N.W.2d at 686.
We thus regard this case as an opportunity to clarify the elements of a
wrongful-discharge-in-violation-of-public-policy claim, the allocation of
the burden of proof, and the role of legitimate business reasons or
justifications in the claim.
First, we recognize the basic and consistent teaching of our
caselaw, namely, that in order to prevail on a wrongful discharge claim in
violation of public policy, the plaintiff must show the protected conduct
was the determining factor in the adverse employment action. See Lloyd,
686 N.W.2d at 229; Teachout, 584 N.W.2d at 301; Smith, 464 N.W.2d at
686. Further, we recognize our caselaw has consistently stated a
determining factor is one that tips the balance in an employment
decision. See Teachout, 584 N.W.2d at 302 n.2; Smith, 464 N.W.2d at
686. 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.
Smith, 464 N.W.2d at 686; see Davis, 661 N.W.2d at 536 (analogizing
determining factor to the “final straw in [the employer’s] decision to
20
terminate [the plaintiff’s] employment”). No party challenges these
established principles in this case.
Second, we conclude the lack of legitimate business justification is
not an element of the claim that the plaintiff must prove. Plaintiffs are
rarely required to prove a negative. Moreover, Judge Bennett’s
distinction between motivating factor and determining factor has been
recognized in our cases. See, e.g., DeBoom, 772 N.W.2d at 9 n.4 (noting
use of motivating factor was preferable to determining factor in a case
involving pregnancy discrimination “in order to eliminate confusion
between tortious discharge and discrimination claims”). Because under
our cases plaintiffs must prove that the protected conduct was the
determining factor, Iowa law does not impose liability on an employer
when the determining factor was a legitimate business reason and
unlawful retaliation was simply a motivating factor.
Third, the fact the plaintiff does not have the burden to show the
employer lacked an overriding business justification does not mean
evidence related to an employer’s legitimate business reasons has no
relevance in a wrongful-discharge-in-violation-of-public-policy case.
Indeed, an employer will prevail if it convinces the fact finder that the
legitimate business reasons supporting the action were so strong as to
defeat the conclusion that the protected conduct was the determining
factor in the adverse employment decision. See, e.g., Phipps, 558 N.W.2d
at 200–01, 203. In other words, the Iowa Civil Jury Instructions on
causation are sufficiently broad to allow an employer to make the case
that the legitimate business reasons, and not the protected conduct,
were the determining factor in the employment decision.
Fourth, we believe there may be some relatively rare circumstances
when an employer is entitled to an affirmative defense of an overriding
21
business justification. As noted by Professor Perritt in his revised
treatise, there may be occasions in which an employee is in fact
terminated because of protected conduct, but the employer should
nonetheless prevail. See Perritt II § 7.08, at 7-100.1. For instance, in
Harman v. La Crosse Tribune, an employee claimed he was fired for
conduct protected by the First Amendment to the United States
Constitution, but his conduct also violated the ethical rules of attorneys.
344 N.W.2d 536, 540 (Wis. Ct. App. 1984). In this situation, with two
competing public policies, the employer may be able to establish an
overriding business reason for the termination. See id. at 540–41. As
noted by Professor Perritt, in such a case, the employer admits the
protected conduct caused the termination, but asserts another policy
trumps the public policy asserted by the employee. See Perritt II § 7.08,
at 7-100.1. No such claim, however, has been raised in this appeal.
VI. Rivera’s Challenge to Jury Instruction No. 15.
A. Rivera’s Position. Rivera asserts that if she is not required to
prove as an element of her wrongful-discharge-in-violation-of-public-
policy claim that there was not an overriding business justification—as
we have ruled—then Instruction No. 15 is necessarily flawed. For the
most part, Rivera’s challenge to the instruction focuses on the fourth
sentence of Instruction No. 15. This sentence states, “The reports were
not the determinative factor if Woodward Resource Center had an
overriding business reason [i.e. its attendance policy] for terminating
Rivera’s employment.”
Rivera claims the fourth sentence improperly invites the jury to
find that even if the unlawful reason for termination was “the
determinative factor” under the first three sentences of the instruction,
the jury could nevertheless conclude Rivera could not prevail because of
22
a business reason that trumped, or was substantively more important,
than the public policy she sought to promote in the wrongful discharge
claim. According to Rivera, in order for a policy to “override” a wrongful
termination based on public policy, the asserted overriding policy cannot
be a business reason, but must be a competing public policy.
Rivera illustrates her argument by citing Harman, in which a law
firm terminated a shareholder lawyer for making public comments about
a client. 344 N.W.2d at 538. The shareholder lawyer claimed the
discharge violated his First Amendment rights. Id. According to Rivera,
the court found that even if the plaintiff in Harman was fired as a result
of public comments, the public policy of enforcing ethical obligations to
clients overrode the alleged public policy in free speech that the plaintiff
sought to advance. See id. at 540.
Rivera further points to Smith, a case in which we emphasized a
mere internal policy of an employer did not substantively trump the
public policy articulated by the legislature to prevent terminations of
employees who file workers’ compensation claims. See 464 N.W.2d at
684–85. Here, Rivera asserts that an overriding business justification is
an affirmative defense available only when the employer concedes the
public policy motivation was the determinative factor in the discharge.
She argues this narrow concept has no application in this case.
In support of this argument, Rivera points out that the term
“overriding business reason” is not defined. According to Rivera, a jury
could presume the word “override” means “[t]o prevail over; to nullify or
set aside.” Black’s Law Dictionary 1279 (10th ed. 2014). Rivera asserts
a jury could read the sentence and erroneously conclude a business
reason such as attendance could “override” an otherwise unlawful
discharge.
23
Rivera notes that under our caselaw, a factor is determinative if it
“tips the scales decisively one way or the other” even if it is not the
predominant reason. DeBoom, 772 N.W.2d at 13; Teachout, 584 N.W.2d
at 302. However, the language of “overriding business reason” suggests
that if the business reason is more important, then the plaintiff cannot
prevail even if the unlawful reason was the determining factor.
Rivera’s argument can be expressed in mathematical terms.
Consider, for instance, a situation in which an employer’s decision to
terminate requires 100 points. Assume that a termination was the result
of mixed motives of legitimate and illegitimate reasons. Further, assume
the jury determines 90 points may be assigned to legitimate business
reasons, and 10 points to unlawful retaliation in violation of public
policy. At 100 points, a termination occurs. Although the legitimate
business reasons were weightier than the unlawful reasons in this
hypothetical, a wrongful termination claim would lie because “the
determining factor,” or the factor that tipped the balance to termination,
was the unlawful retaliatory motive.
Rivera concedes the first two sentences in Instruction No. 15 were
correct statements of law. However, she argues the fourth sentence
conflicts with them. When one part of the instruction fairly describes the
law, while another part incorrectly states the law, Rivera argues reversal
is required. See State v. Leins, 234 N.W.2d 645, 648–49 (Iowa 1975)
(reversing based on an instruction containing both correct and incorrect
rules). Simply because one instruction is correct does not mean,
according to Rivera, that an incorrect instruction may be ignored. See
DeBoom, 772 N.W.2d at 13 (reversing based on conflicting causation
burden of proof instructions).
24
Rivera claims DeBoom is instructive in this case. In DeBoom, the
trial court defined “determining factor” in conflicting and confusing ways.
772 N.W.2d at 12–13. In one instruction, the trial court used a higher
standard, the “tip the scales” standard, but used a lower “motivating
factor standard” in another. Id. Although one of the instructions was
correct, the inconsistency in the instructions necessitated a new trial.
Id. at 13–14.
Here, according to Rivera, the district court did the same thing.
The district court properly stated the determining factor required for
causation is the reason that tips the scales, but then in the fourth
sentence instructed the jury that attendance guidelines or other
legitimate business reasons can override a mandatory duty to report
abuse. According to Rivera, this is precisely what happened in DeBoom.
Further, Rivera suggests sentence four improperly put the burden on her
to prove attendance was not an overriding factor.
Based on the above, Rivera contends Instruction No. 15 was
flawed. Rivera believes the fourth sentence conflicts with the previous
sentences, but further notes that a confusing instruction also warrants
reversal. See McElroy v. State, 637 N.W.2d 488, 500 (Iowa 2001) (noting
we generally reverse when an instruction is confusing); Anderson, 620
N.W.2d at 268 (emphasizing prejudice results when an instruction
confuses the jury).
Finally, Rivera argues the instructional error was prejudicial.
Rivera contends she offered substantial evidence to support her claim.
She notes the evidence showed the only written attendance policy
provided to probationary employees stated that employees were subject
to termination after ten absences. Further, Rivera offered evidence that
several employees had more than three absences during their
25
probationary period and were not terminated. Moreover, Rivera offered
testimony from an employee who had accrued more than three absences
during her probationary period and retained her position, but was
subsequently fired after her next absence following her complaint
regarding a coworker abusing a resident. Rivera argues that the tipping
point—the determinative factor that put her in the termination category
rather than the retention category—was the reporting of abuse.
B. WRC’s Position. WRC contends Instruction No. 15 was not
conflicting or confusing even if Rivera does not have the burden of
showing a lack of an overriding business reason. WRC notes the district
court in fact agreed with Rivera that she was not required to prove the
absence of an overriding business reason. According to WRC, nothing in
the instruction confused the jury, required Rivera to prove her case
twice, impermissibly shifted the burden of proof, or improperly permitted
the jury to allow WRC to avoid liability.
WRC emphasizes the earlier sentences in Instruction No. 15 plainly
stated that “the determining factor” need not be the main reason
motivating the decision to terminate employment but need only be the
reason “which tips the scales decisively one way or the other.” Further,
WRC emphasizes Instruction No. 15 did not explicitly shift the burden of
proof.
WRC does not advance a standard of review for jury instructions,
or review cases with confusing or conflicting jury instructions. WRC
emphasizes, however, that while there is no requirement for trial courts
to follow jury instructions of the Iowa State Bar Association, courts may
do so, as long as the instructions fully and fairly embody the law and
applicable principles. See State v. Ambrose, 861 N.W.2d 550, 562–63
(Iowa 2015) (Wiggins, J., concurring specially) (“[T]he trial court has a
26
duty to make sure the [Iowa State Bar Association’s] instruction
conforms with Iowa law.”).
In the alternative, WRC argues any error in the instruction was
harmless. WRC recognizes that “[e]rrors in jury instructions are
presumed prejudicial unless the record affirmatively establishes there
was no prejudice.” Asher v. OB-Gyn Specialists, P.C., 846 N.W.2d 492,
496 (Iowa 2014) (internal quotation marks omitted). WRC argues that
when nonconstitutional error is involved, “the test of prejudice is whether
it sufficiently appears that the rights of the complaining party have been
injuriously affected or that the party has suffered a miscarriage of
justice.” Id. (internal quotation marks omitted).
WRC contends the essential choice for the jury in this case was
one of credibility. The jury had a choice of either believing Rivera or
believing WRC. WRC asserts Rivera’s testimony was fraught with
inconsistency; she offered widely diverging accounts of what occurred.
Further, WRC notes Rivera lied on her application of employment,
attended a garage sale when she called in sick, and had at least three
unscheduled absences. WRC characterizes Rivera’s evidence of
retaliation as speculation and conjecture, while contending its own
evidence was overwhelming.
C. Iowa Caselaw on Jury Instructions. We begin with a brief
review of Iowa caselaw regarding challenges to jury instructions. First,
we examine the substantive bases for challenges to jury instructions.
Then we review application of the harmless-error doctrine to cases in
which jury instructions, though imperfect, do not form a basis for retrial.
1. Substantive bases for challenges to jury instructions. The basic
framework for a successful challenge to jury instructions is well
established. A material misstatement of the law in a jury instruction, of
27
course, ordinarily requires reversal. Waits v. United Fire & Cas. Co., 572
N.W.2d 565, 575 (Iowa 1997). For example, instructions that improperly
allocate the burden of proof are subject to reversal. See Koenig v. Koenig,
766 N.W.2d 635, 646 (Iowa 2009). “When jury instructions contain a
material misstatement of the law, the trial court has no discretion to
deny a motion for a new trial.” Benn v. Thomas, 512 N.W.2d 537, 539
(Iowa 1994).
We also reverse when instructions are misleading and confusing.
See, e.g., McElroy, 637 N.W.2d at 500. We have said an instruction is
misleading or confusing if it is “very possible” the jury could reasonably
have interpreted the instruction incorrectly. Id.; see also State v. Horrell,
260 Iowa 945, 954, 151 N.W.2d 526, 532 (1967) (requiring new trial
when instructions are “obviously confusing”). On the other hand, if a
review of the instructions “leads to the inevitable conclusion that the jury
could not have misapprehended the issue,” then the challenge is without
merit. Moser v. Stallings, 387 N.W.2d 599, 605 (Iowa 1986) (emphasis
added); Mora v. Savereid, 222 N.W.2d 417, 422 (Iowa 1974) (same). An
erroneous jury instruction is not necessarily cured by a later instruction
correctly stating the law. See Leins, 234 N.W.2d at 648–49 (reversing for
new trial when trial court gave an instruction containing two tests, one
proper and one improper, and the reviewing court was unable to
determine which rule the jury applied).
Our cases illustrate these principles. For example, in State v.
Hanes, we noted the trial court gave an incorrect instruction when the
last sentence of the instruction improperly suggested that the defendant
need not have specific intent at the time of the alleged act,
notwithstanding previous language in the marshalling instruction that
provided a correct statement of the law. 790 N.W.2d 545, 555–56 (Iowa
28
2010). Although remanding on other grounds, we noted the district
court “should not instruct the jury upon retrial that the defendant’s
specific intent may exist at any time.” Id. at 556. Similarly, in DeBoom,
we reversed the trial court’s denial of a motion for a new trial in a
wrongful discharge case when one instruction suggested that the proper
causation standard was a “determining factor” while another instruction
used the “motivating factor” standard. 772 N.W.2d at 12–14.
In determining whether an instruction is inaccurate, misleading, or
confusing, we look to the instructions as a whole and do not require
perfection. For example, in State v. Pelelo, while we disapproved of an
additional sentence added to an entrapment instruction, we concluded
that, nonetheless, the instructions taken as a whole accurately reflected
the law. 247 N.W.2d 221, 225 (Iowa 1976). Similarly, in Robeson v.
Dilts, we held that although it would have been preferable for an
instruction to contain specifications of negligence, there was no
reversible error, as an earlier instruction contained the specifications.
170 N.W.2d 408, 415 (Iowa 1969).
We have also disapproved repetitive instructions that unduly
emphasize a feature of the case. For instance, repeated emphasis that
the city was not an insurer for all injuries that occurred on the premises
was reversible error. See Clarke v. Hubbell, 249 Iowa 306, 316, 86
N.W.2d 905, 911 (1957). On the other hand, when largely repetitive or
overlapping instructions provide some additional guidance, reversal may
not be required. See, e.g., Burkhalter v. Burkhalter, 841 N.W.2d 93, 106–
07 (Iowa 2013) (finding that “[w]hile the instructions overlapp[ed] to some
degree . . . a single repetition coupled with a clarification of the law does
not amount to error”); Andrews v. Struble, 178 N.W.2d 391, 400 (Iowa
29
1970) (holding repetition not proper but permitted when “of some aid in
clarifying the requirement of proximate cause”).
2. Harmless-error doctrine. Even when we find an instruction
legally inadequate, error may be harmless. In applying the harmless-
error doctrine we “first guess” the jury. In other words, we try to divine
what a jury would have done had it been properly instructed, an
admittedly delicate task that should emphasize humility over hubris.
We have held the same harmless-error analysis for
nonconstitutional trial errors applies in the case of a nonconstitutional
challenge to jury instructions. Hanes, 790 N.W.2d at 550. The burden
is on the party claiming harmlessness. See id. We assume prejudice
unless the record affirmatively establishes that there was no prejudice.
Id. at 551. Harmless error may be found, for example, if the record
affirmatively establishes that a party has not been injuriously affected by
the alleged error or that there has not been a miscarriage of justice. Id.
at 550.
In some cases, application of the harmless-error doctrine is
relatively clear. For example, when an erroneous instruction makes the
burden more onerous on the successful party, any error is clearly
harmless and reversal is not required. See Asher, 846 N.W.2d at 499;
Hagenow v. Schmidt, 842 N.W.2d 661, 677 (Iowa 2014). Similarly, we
have held that when a party succeeds on two theories, one of which is
properly instructed, any error in the instructions on the improperly
instructed second theory is harmless. See Olson v. Prosoco, Inc., 522
N.W.2d 284, 290 (Iowa 1994).
We have also found harmless error when one instruction arguably
omits a legal requirement that is included in subsequent instructions on
the ground that the instructions are to be read as a whole. Thavenet v.
30
Davis, 589 N.W.2d 233, 237 (Iowa 1999); Robeson, 170 N.W.2d at 414.
When, however, an inadequate instruction relating to the right of
recovery goes to “the very heart of the case,” it is not rescued by abstract
instructions elsewhere. Law v. Hemmingsen, 249 Iowa 820, 825, 89
N.W.2d 386, 390–91 (1958).
D. Analysis of Rivera’s Challenge to the Jury Instruction. The
differences between the parties centers on the relationship of the fourth
sentence of Instruction No. 15 to the earlier sentences and the meaning
of the phrase “overriding business reason.” Rivera claims a jury could
conclude the fourth sentence trumps or provides an exception to the first
three sentences. WRC essentially argues the fourth sentence merely
restates the correct principles of law provided in the first three sentences
of Instruction No. 15.
We first clear underbrush. The fact the district court agreed with
Rivera’s general proposition that she was not required to prove there was
no overriding business justification does not necessarily justify the use of
the instruction. The question before us is not what the court subjectively
intended. Indeed, the subjective intent of the district court is irrelevant.
The question is what the language of the instruction would mean to a
reasonable jury. See State v. Liggins, 524 N.W.2d 181, 185 (Iowa 1994)
(“The interpretation of . . . instruction[s] requires the court to determine
what a reasonable juror could have understood the charge as meaning.”
(Internal quotation marks omitted.)); see also State v. Winders, 359
N.W.2d 417, 420 (Iowa 1984); State v. Rinehart, 283 N.W.2d 319, 322
(Iowa 1979).
We further reject Rivera’s argument that the instruction as written
impermissibly embraces a same-result doctrine, as it relates to the fourth
sentence of Instruction No. 15. Instruction No. 15 correctly states that
31
the unlawful reason must be a tipping point or determining factor in the
decision. If it is not—if indeed the termination was based upon other
factors and the unlawful conduct did not tip the balance—then the
termination is lawful. To the extent Rivera believes the “same result”
argument is inappropriate when the unlawful retaliation is not the
determinative factor in the termination, we do not agree.
We now turn to the analysis of the language of the instruction.
Our caselaw instructs that any evaluation of an alleged flaw in a jury
instruction must be considered based upon the instructions as a whole,
not piecemeal. See Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525,
536 (Iowa 1999); Thavenet, 589 N.W.2d at 236. Taking the instructions
as a whole, we conclude a reasonable jury would read the sentences in
Instruction No. 15 harmoniously. The first sentences of Instruction No.
15 clearly indicate that a determining factor need not be the most
weighty but must only “tip the scales” of decision-making. This correct
statement of law is not expressly contradicted by the fourth sentence.
The fourth sentence can be easily harmonized with the first three by
interpreting the phrase “overriding business reason” to mean a business
reason that prevents the unlawful retaliation from being the
determinative factor in the discharge. Nothing in the fourth sentence
indicates it is an exception to the previous sentences, but it appears to
be a simple restatement of the law. “An instruction is not confusing if a
full and fair reading of all of the instructions leads to the inevitable
conclusion that the jury could not have misapprehended the issue . . . .”
Moser, 387 N.W.2d at 605. Although the fourth sentence provided no
additional guidance and is not approved, we do not find the additional
sentence misled or confused the jury in light of the totality of the
instructions. As a result, Rivera is not entitled to a new trial.
32
VII. Conclusion.
For the above reasons, we conclude Rivera is not entitled to a new
trial. The judgment of the district court is affirmed.
AFFIRMED.
All justices concur except Wiggins and Hecht JJ., who concur in
part and dissent in part.
33
#14–0194, Rivera v. Woodward Res. Ctr.
WIGGINS, Justice (concurring in part, dissenting in part).
I agree with the majority’s conclusion that the instruction given
was erroneous, but depart from the majority’s conclusion that the
instructional error does not require a new trial. I conclude a new trial is
required for the following reasons.
Based on the language used in the instruction, a jury could have
considered the fourth sentence in Instruction No. 15 to be simply a
restatement of the law provided in the previous three sentences, as
Woodward Resource Center (WRC) suggests. If so, this court might
characterize the instruction as a redundant but harmless elaboration of
the law. See, e.g., State v. Chatterson, 259 N.W.2d 766, 771 (Iowa 1977)
(noting as a whole, instructions properly set out the elements of the
crime, and the use of the phrase “ ‘a felony,’ though redundant, was
merely a contemporary characterization of the statutory crime . . . [and]
was nothing more than harmless excess verbiage”).
On the other hand, it is also plausible a jury would read the fourth
sentence to be an exception to the first three sentences, assuming the
fourth sentence cannot be redundant and must mean something. It is
true, of course, the fourth sentence does not use the terms “if” or
“however,” but jurors are not highly skilled linguists interpreting
instructions with an eye to grammatical superiority that might be
employed by legal cognoscenti. As Chief Judge Traynor wrote many
years ago:
The most troublesome instructions are not those that
are demonstrably incorrect, but those that may be
incorrectly understood because of their inept language. . . .
If an instruction on a substantial issue is confusing to a
reasonable juror, the judgment should be reversed.
34
Roger J. Traynor, The Riddle of Harmless Error 74 (1970).
In my view, a reasonable juror could conclude the fourth sentence
did in fact provide an exception to the principles of the previous three
sentences. This is because a juror could reasonably conclude the fourth
sentence must state a legal principle beyond that contained in the first
three sentences of the instruction.
There is an additional problem. The ambiguous use of the phrase
“overriding business justification” in the fourth sentence complicates the
relationship between the first three sentences and the fourth sentence.
The judge did not define this term in the instruction. What exactly is an
overriding business justification? Does it mean a business reason that is
more important than the public policy the plaintiff seeks to advance in
the wrongful discharge claim? Does it mean that a business justification
may substantively trump or override the public policy asserted by the
plaintiff by being more important? If so, the instruction is a plainly
incorrect statement of law in light of our rejection of the requirement that
the plaintiff prove a lack of overriding business justification in a wrongful
discharge suit.
One thing is clear, however. Given the majority’s substantive
ruling in this case, the fourth sentence added nothing of value to
Instruction No. 15. The first three sentences adequately stated the law.
The sole question before the court is whether the addition of the fourth
sentence is sufficiently vague, ambiguous, conflicting, or confusing to
require a new trial under the facts and circumstances of this case.
On balance, I find the instruction sufficiently problematic to
require a new trial. On numerous occasions, this court has held that
new trials are required when instructions are sufficiently ambiguous to
undermine our confidence in the verdict, often characterizing the
35
instructions as confusing. See State v. Becker, 818 N.W.2d 135, 141
(Iowa 2012) (emphasizing that “prejudice will be found where . . . the
instruction could reasonably have misled or misdirected the jury”);
McElroy v. State, 637 N.W.2d 488, 500 (Iowa 2001); Anderson v. Webster
City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000) (finding
instructions did not mislead jury but noting that “[p]rejudice results
when the trial court’s instruction materially misstates the law, confuses
or misleads the jury or is unduly emphasized”); Mills Cnty. State Bank v.
Fisher, 282 N.W.2d 712, 715–16 (Iowa 1979) (noting the instruction was
“sufficiently ambiguous and confusing to constitute error”); State v.
Horrell, 260 Iowa 945, 954, 151 N.W.2d 526, 532 (1967) (noting an
“obviously confusing” instruction would constitute reversible error).
Here, while WRC’s linguistic argument is plausible, I also find
substantial plausibility in the plaintiff’s interpretation of the instruction.
I note our cases indicate that when it was possible the jury was confused
or mislead, reversal is required. See Becker, 818 N.W.2d at 141. I
certainly cannot come to the “inevitable conclusion” that the jury
understood the fourth sentence in Instruction No. 15 as a simple
restatement of previous concepts in the instruction. See Moser v.
Stallings, 387 N.W.2d 599, 605 (Iowa 1986); cf. McElroy, 637 N.W.2d at
500.
WRC, of course, is correct that harmless instructional error does
not require reversal. See Asher v. OB-GYN Specialists, P.C., 846 N.W.2d
492, 499 (Iowa 2014). Most of our harmless error cases, however, do not
deal with canvassing of the evidence to determine what a jury would have
done had it been properly instructed. See, e.g., McElroy, 637 N.W.2d at
500 (noting the instruction could have reasonably been misinterpreted
by the jury without discussing how the jury would have decided with a
36
correct instruction). Instead, the cases deal with analysis of the
instructions themselves to determine whether a party has, in fact, been
injured by the error or if a reasonable jury could have been misled by the
instructions when taken as a whole. See, e.g., id. The imperfect
instructions in these cases were harmless as a matter of law.
In this case, WRC argues for a different application of our harmless
error rules. Namely, WRC argues even if the instruction was wrong, a
jury would have come to the same result in light of the record developed
at trial. The burden of showing the error is harmless rests with WRC.
See State v. Hanes, 790 N.W.2d 545, 550 (Iowa 2010). However, when
an instruction relates to the core of the case and misleads or confuses
the jury, reversal is mandated. See Law v. Hemmingsen, 249 Iowa 820,
824–25, 89 N.W.2d 386, 390–91 (1958); see also Koenig v. Koenig, 766
N.W.2d 635, 646 (Iowa 2009) (“An instruction that improperly states the
burden of proof is a material error demanding reversal.”).
In any event, even if I were to conduct a fact-based harmless error
analysis here, WRC cannot meet its burden. I note at the outset that the
district court denied WRC’s motion for summary judgment in this case.
As a result, there were substantial issues to be tried.
I further note the instruction challenged in this case is not on the
periphery of the dispute, but is at its heart. Law, 249 Iowa at 824–25,
89 N.W.2d at 390–91; cf. Anderson, 620 N.W.2d at 267 (noting an
instruction that amounted to a comment on the evidence did not warrant
reversal when clarified by a subsequent instruction). The instruction
does not relate to a collateral matter, but to a critical issue in the case.
Specifically, when is an impermissible reason, the determinative factor,
sufficient to support a wrongful discharge claim? A flawed core
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instruction in a case that did not survive summary judgment is not a
good candidate for fact-driven harmless error analysis.
WRC summarizes the evidence offered at trial that would support a
jury verdict in its favor. WRC stresses the testimony of Rivera was
inconsistent and generally incredible, while the testimony of WRC
administrators clearly supported WRC’s theory that any report made by
Rivera of abusive conduct was not a determinative factor in its decision
to discharge. Clearly, WRC offered substantial evidence in support of its
claim that it did not wrongfully discharge her.
We cannot conduct a balanced review of the facts by solely
considering WRC’s evidence. 4 Rivera offered evidence that relates
directly to the instructional issue posed in this appeal. She presented
evidence that only two attendance policies were provided to probationary
employees: one limiting absences to ten occurrences per year and one
providing that when probationary employees experienced three absences
within six months they were sometimes terminated, but sometimes were
not terminated. She presented evidence that one probationary employee
was not terminated after three absences, but was immediately
terminated after a fourth absence and after she complained about the
care at WRC. A reasonable jury could conclude, based on Rivera’s
evidence, that three absences did not automatically lead to discharge and
that other factors were relevant in determining whether an employee was
to be terminated. In light of her strong job performance, Rivera
presented a plausible case—one that survived summary judgment—that
the “tipping point” was her complaint regarding the care at WRC. In light
4In addition, evidence excluded from trial should not be considered in the
harmless error analysis.
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of the entire record, including the denial of the motion for summary
judgment and the nature of the offending instruction, I cannot conclude
WRC met its burden in showing the confusing instruction was harmless.
Hecht, J., joins this concurrence in part and dissent in part.