Ronald Rumsey v. Woodgrain Millwork, Inc. d/b/a Windsor Windows and Doors, Liz Mallaney, and Clay Coppock

IN THE SUPREME COURT OF IOWA
No. 20–0135

Submitted February 17, 2021—Filed June 25, 2021

RONALD RUMSEY,

Appellee,

vs.

WOODGRAIN MILLWORK, INC. d/b/a
WINDSOR WINDOWS AND DOORS,
LIZ MALLANEY, and CLAY COPPOCK,

Appellants.

Appeal from the Iowa District Court for Polk County,

Coleman McAllister, Judge.

Defendants, as employer, appeal denial of their motion for directed

verdict following jury trial on employee’s disability-discrimination-related

claims. REVERSED AND REMANDED.

Oxley, J., delivered the opinion of the court, in which all justices

joined.

Randall D. Armentrout (argued) and Leslie C. Behaunek of

Nyemaster Goode, P.C., Des Moines, for appellants.

David Albrecht (argued) and Madison Fiedler Carlson of Fiedler Law

Firm, P.L.C., Johnston, for appellee.
 2

OXLEY, Justice.

This case involves the not uncommon, yet often murky, intersection

between worker’s compensation and disability discrimination. In this

case, an injured employee with a preexisting hearing impairment

continued to work while rehabilitating from a workplace injury. The

employer assisted the rehabilitation by providing light-duty work

consistent with the temporary workplace restrictions imposed by the

employee’s doctors. A disagreement arose concerning whether the

employee was entitled to a specific work restriction, and the employee was
fired. In the ensuing disability discrimination litigation, the employer

claimed the firing was based on insubordination. The employee claimed

the employer discriminated against him by firing him when he sought a

reasonable accommodation for a disability. A jury accepted the employee’s

claim and awarded damages.

As is often the case with workplace injuries, the employer complied

with physician-imposed restrictions for the work injury by providing

temporary light-duty work, but that work was not otherwise available as a

full-time job. Yet for disability discrimination purposes, the employee

must prove he could perform the essential functions of the job. And

courts, including ours, routinely hold that an employer need not create a

new job as an accommodation for disability discrimination purposes. We

preserve that limitation. To hold otherwise would broaden the obligations

an employer owes to accommodate disabilities when an employee is

injured on the job, blurring the distinct obligations an employer owes to

its injured workers for purposes of worker’s compensation and those it

owes to its disabled employees for purposes of disability discrimination.
Not every workplace injury results in a disability that can be

accommodated. To the extent the plaintiff’s disability claims were based
 3

on the workplace injury, the plaintiff’s failure to identify any job he could

perform apart from the temporary light-duty work defeats his claims.

The hearing-impaired plaintiff also brought disability claims

stemming from his request for a sign language interpreter. His failure-to-

accommodate and retaliation claims related to that request did not depend

on the worker’s compensation imposed restrictions or the plaintiff’s ability

to prove his ability to perform a specific job. Although the jury found for

the plaintiff on those claims, the jury instructions and verdict form prevent

us from determining whether those verdicts were based on the work injury
or the request for a sign language interpreter. The defendants are

therefore entitled to a new trial on those two distinct claims.

I. Factual Background and Proceedings.

Ronald Rumsey has been deaf since birth. He uses a hearing aid,

which allows him to hear loud noises, but he relies primarily on lip reading

and sign language to communicate. In 2007, Rumsey began working for

Woodgrain Millwork (Windsor). Rumsey was an exemplary employee for

many years, earning favorable performance reviews and “employee of the

month twice,” once in 2010 and once in 2012. Although he did not use

them in his day-to-day work, Rumsey requested a sign language

interpreter for certain events, such as speaking with human resources or

attending doctor’s appointments for his work-related injuries, and

Windsor provided them.

In early 2015, Rumsey was working the “IG Wrap” job, where he

wrapped large panes of glass for shipping. Windsor classified this job as

a “Material Handler II” position. On January 21, Rumsey hurt his back

and shoulder while moving a large pane of glass from the rack to the
worktable for wrapping. As he twisted to position the glass, he felt a sharp

pain in his shoulder and a pop in his back, causing him to drop the glass
 4

and fall to the floor. He filed a worker’s compensation claim with Windsor’s

worker’s compensation carrier and received medical treatment from

company-provided doctors. Over the ensuing months, Rumsey’s doctors

gave him various work restrictions, and Windsor complied with the

restrictions by assigning him to light-duty work.

Rumsey initially saw Dr. Daniel Miller, an occupational-medicine

physician, who referred Rumsey to Dr. Todd Harbach for his shoulder and

back pain on February 9. Dr. Harbach determined Rumsey’s back pain

was nonoperable but diagnosed impingement syndrome in his right
shoulder that would benefit from surgery. Dr. Harbach scheduled Rumsey

for shoulder surgery in September and returned him to the care of other

doctors for continued occupational therapy and pain management for his

back. Rumsey used sign language interpreters for all of his doctor’s

appointments.

On July 29, Dr. Miller concluded Rumsey’s back had reached

maximum medical improvement (MMI). Dr. Miller issued a permanent

ten-pound lifting restriction at that time, and it became clear Rumsey

could not return to his previous position due to the heavy-lifting

requirements that were part of that job. Even though he reached MMI for

his back in July, Rumsey continued to experience back pain and took

substantial time off, using his sick leave and vacation days to cover the

time. When he did come to work, he performed light-duty work such as

inspecting the quality of glass.

Meanwhile, Dr. Harbach performed a right-shoulder arthroscopic

acromioplasty and distal clavicle excision on September 23 and ordered

physical therapy for Rumsey’s shoulder recovery. Rumsey returned to
work in November, but he continued to experience back and shoulder

pain.
 5

Windsor’s Human Resources (HR) director Liz Mallaney worked with

Rumsey to implement the work restrictions imposed by his doctors.

Rumsey presented evidence that Mallaney was not always patient with his

requests. For instance, when Rumsey went home early one day because

of back pain, Mallaney responded to the email explaining Rumsey’s early

departure with the single word “Dying.” Rumsey testified Mallaney told

him she could only implement the restrictions he believed he needed if she

had a doctor’s authorization but then she failed to set up doctor’s

appointments.
Rumsey saw Dr. Harbach on December 10 as a follow-up for his

shoulder surgery. At that appointment, Rumsey reported improvement in

his shoulder with continuing pain, and Dr. Harbach renewed his order for

physical therapy with hopes of reaching MMI for his shoulder in four to six

weeks. Rumsey also reported continuing back pain and asked whether

Dr. Harbach could add a sit-down restriction to his treatment plan. Noting

he had previously treated Rumsey for his back, Dr. Harbach modified

Rumsey’s work restrictions to add a temporary sit-down restriction.

Rumsey gave the new work restrictions, including the sit-down

restriction, to Mallaney on Friday, December 11, and went home for the

day. Mallaney promptly emailed Windsor’s worker’s compensation

coordinator, saying, “Action MUST be taken on Ron Rumsey.” In the email,

Mallaney emphasized that the restrictions were for Rumsey’s shoulder,

questioning “[w]hy sit down work for a shoulder?” She also questioned

Rumsey’s claim that “Dr. Harbach informed him Windsor needs to deal

with the back” when the back injury was closed.

The worker’s compensation coordinator contacted Dr. Harbach’s
office and requested that Dr. Harbach submit an addendum to the

document recanting the sit-down restriction because Dr. Miller, not
 6

Dr. Harbach, was treating Rumsey’s back. Dr. Harbach issued an

addendum Saturday morning, noting:

I had previously returned the patient to Dr. Miller, an[]
occupational medicine physician, for continued care of his low
back. Therefore, I cannot provide restrictions related to
[Rumsey’s] lumbar spine at this time. I retracted those
restrictions and return[ed] [Rumsey] to Dr. Miller for those
restrictions.

At his deposition, Dr. Harbach testified his medical opinion remained that

the restriction would have helped Rumsey’s pain but that he had

overstepped his role so he followed the instructions of his worker’s
compensation liaison and issued the addendum.

What happened next is largely contested by the parties. Construing

the evidence in the light most favorable to Rumsey, the jury could have

found the following. Rumsey returned to work on Tuesday. When asked

to sign his work restrictions, Rumsey was surprised and confused not to

see the sit-down restriction and refused to sign the modified document. A

floor supervisor then asked Clay Coppock, the production manager, to

discuss the restrictions with Rumsey. Coppock insisted Rumsey sign the

document. Rumsey admittedly became upset and angry, so Rumsey and

Coppock went to speak to Mallaney about it. On the way to Mallaney’s

office, Coppock repeatedly told Rumsey to sign the document.

In Mallaney’s office, Coppock and Mallaney spoke in a location

where Rumsey could not read their lips before they returned to speak with

him. Coppock and Mallaney told Rumsey they would need to discuss the

situation with Peter Crivaro, the head of HR, but that Crivaro would not

arrive until 8:00 a.m., over an hour wait. Rumsey said he was going to

request an interpreter for the meeting with Crivaro and, since he did not
think they could locate an interpreter on such short notice, he was going

home. Rumsey further testified that he tried to text his worker’s
 7

compensation attorney while in Mallaney’s office and Mallaney and

Coppock stopped him. He sent a text shortly after he left requesting thirty

minutes’ notice for him to return if Mallaney could find an interpreter for

the meeting with Crivaro.

Mallaney and Coppock presented a different story, testifying that

Rumsey got in Coppock’s face, yelled at both of them using profanity,

knocked the doctor’s papers out of Mallaney’s hand, and behaved in a

threatening manner that left Mallaney in fear of him.

After Rumsey left, Mallaney and Coppock decided Rumsey should
be fired for insubordination and made that recommendation to Crivaro

when he arrived at work. Crivaro terminated Rumsey’s employment

without meeting with him to discuss the restrictions. Because Rumsey

was represented by counsel, Crivaro contacted Windsor’s attorney to relay

the termination decision to Rumsey’s attorney, who then contacted

Rumsey to inform him he had been fired.

At the time of his firing, Windsor’s employment records identified

Rumsey as a “Fabricator.” Rumsey testified that, at that time, he worked

at a job “beading” doors, where he applied weather stripping to wooden

doors followed by foam that would later be removed to join glass to the

wood, one of many tasks involved in the Fabricator position. Rumsey

never actually worked full time on the beading work, though Rumsey

testified the job could be done full time. Coppock testified, uncontested,

that if someone did the beading job full time, the person would have to

bead more doors than Windsor produced. Additionally, Mallaney testified

that although Rumsey was doing the beading work “full time,” that work

was a light-duty accommodation. Moreover, Rumsey did not work full-
time hours in the weeks before he was fired.
 8

The parties introduced job descriptions for both the Material

Handler II and the Fabricator positions as exhibits at trial. The Material

Handler description declared the position required “[f]requent lifting,

carrying, pushing and pulling” of objects over fifty pounds, while the

Fabricator position required only occasional lifting, carrying, pushing, and

pulling. Rumsey presented no evidence that he was able to perform any

parts of the Fabricator job other than the beading work.

Rumsey also alleged he was mistreated because of his hearing

impairment throughout his time working at Windsor. The only allegation
related to his hearing impairment that occurred within the statutory time

frame for bringing a civil rights claim was Rumsey’s request for an

interpreter for the December 15 meeting that never happened. Although

other incidents were outside the statute-of-limitations period for the

disability claim, the district court allowed some evidence of Windsor’s

conduct related to his hearing impairment for the limited purpose of

proving discriminatory motive but excluded other evidence.

Rumsey took the firing hard. He had a history of difficulties with

other jobs in the past related to his hearing impairment, and he thought

he finally found a place he could work until he retired. Rumsey choked

up on the stand testifying about the pride he took in the work he did at

Windsor. The loss of Rumsey’s job was also a serious financial blow to his

family because his wife was sick and could not work full time.

Rumsey sued Windsor for disability discrimination under the Iowa

Civil Rights Act (ICRA). He brought three specific claims: disability

discrimination, failure to accommodate, and retaliation for requesting an

accommodation. In addition to bringing these claims against Windsor as
his employer, Rumsey also named Mallaney and Coppock individually as

defendants. In early 2017, Rumsey settled his worker’s compensation
 9

claims for $100,000 plus payment of Rumsey’s medical bills related to his

workplace injuries.

The case proceeded to jury trial on each of the three disability

discrimination claims. The jury returned a verdict in favor of Rumsey,

concluding the defendants were collectively liable under all three claims.

The jury awarded $58,000 in back pay, $300,000 in past-emotional-

distress damages, and $150,000 in future-emotional-distress damages.

The court declined to award frontpay.

The defendants appeal. They argue the district court erred in not
granting their motion for a directed verdict, particularly because Rumsey

did not prove he was qualified to perform any permanent job at Windsor.

Alternatively, they argue the instructions and verdict form should have

explained individual liability for Coppock and Mallaney and provided

separate lines for each defendant on the verdict form. They further argue

neither Coppock nor Mallaney can be liable for discrimination under the

ICRA because they are not supervisors. The defendants also challenge

some of the district court’s evidentiary rulings.

Rumsey cross-appeals the denial of frontpay and, if we remand for

a new trial, the exclusion of testimony involving Rumsey’s treatment by

his coworkers. We retained the appeal.

As explained below, we conclude that the defendants were entitled

to a directed verdict on each of Rumsey’s claims except the failure-to-

accommodate and retaliation claims related to requesting a sign language

interpreter. Given the way the claims were intertwined at trial, the

defendants are entitled to a new trial on those claims. We address the

other issues raised by the parties only to the extent they may arise again
on retrial.
 10

II. Standard of Review.

“We review the district court’s rulings on motions for directed verdict

for correction of errors at law.” Yates v. Iowa W. Racing Ass’n, 721 N.W.2d

762, 768 (Iowa 2006). “[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. “A directed

verdict is required ‘only if there was no substantial evidence to support the

elements of the plaintiff’s claim.’ ” Pavone v. Kirke, 801 N.W.2d 477, 487

(Iowa 2011) (quoting Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa
2009)). “To overcome a motion for directed verdict, substantial evidence

must exist to support each element of the claim or defense. Substantial

evidence exists if reasonable minds could accept the evidence to reach the

same findings.” Yates, 721 N.W.2d at 768 (citation omitted).

III. Analysis.

The defendants appeal the district court’s denial of their motion for

directed verdict. Specifically, the defendants argue that Rumsey failed to

prove he was qualified to perform the essential functions of his job, a

necessary element of his disability discrimination and failure-to-

accommodate claims. A fighting issue in this appeal is identifying what

“job” the jury was required to consider in determining whether Rumsey

could perform its essential functions.

The defendants argue that, as an element of Rumsey’s case in chief,

Rumsey was required to identify a specific job and the job had to be a

permanent job available at Windsor. In an effort to provide “suitable work”

within the context of Rumsey’s worker’s compensation claim, Windsor

arranged for Rumsey to perform light-duty work while Rumsey was
 11

rehabilitating the injuries to his back and shoulder.1 However, the

defendants argue disability discrimination laws do not require employers

to create a permanent light-duty job where none currently existed.

Rumsey responds by identifying the “beading” job, part of the fabricator

category of positions, as a job he could perform. He also argues he is not

required to identify a specific job because Windsor admitted it was willing

to accommodate him with light-duty work and did not terminate him for

lack of an available job.

The instructions to the jury did not require it to identify what job
Rumsey could perform or otherwise limit the types of jobs the jury could

consider in determining whether Rumsey was able to perform the essential

functions of his job. The relevant element of the jury instructions for

Rumsey’s disability discrimination and failure-to-accommodate claims

had similar requirements.

Instruction No. 17 for the disability discrimination claim required

Rumsey to prove as element four:

At the time of his termination, Plaintiff could have performed
the “essential functions” of his job, with or without
“reasonable accommodations.”

Instruction No. 19 for the failure-to-accommodate claim required

Rumsey to prove as element four:

The Plaintiff could have performed the essential functions of
his job at the time of his termination if the Plaintiff had been
provided with sit down work and/or a sign language
interpreter.

1See Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 519 (Iowa 2012) (“Iowa Code
section 85.33(3) disqualifies an employee from receiving temporary partial, temporary
total, and healing period benefits if the employer offers ‘suitable work’ that the employee
refuses. If the employer fails to offer suitable work, the employee will not be disqualified
from receiving benefits regardless of the employee’s motive for refusing the unsuitable
work.” (citations omitted)).
 12

“Job” was not otherwise defined in the jury instructions. Nor was the jury

instructed to determine what “job” Rumsey could perform.

In determining whether the district court should have granted a

directed verdict, we judge the evidence against the jury instructions when

the parties do not object to the instructions. See Easton v. Howard, 751

N.W.2d 1, 5 (Iowa 2008) (explaining instructions become the law of the

case when the parties make no objections). But here, the defendants

challenged each of the instructions by seeking to add language describing

the job as “a full-time, non-light duty job.” The defendants argued that

[b]ecause the provision of light duty work is not a reasonable
accommodation as a matter of law, this instruction needs to
make it clear to the jury that when they consider what
Plaintiff’s “job” was for purposes of his disability
discrimination claim, they do not consider light duty tasks.

The district court rejected the requested language.

Given these objections, the jury instructions do not limit our

analysis. Cf. Shams v. Hassan, 905 N.W.2d 158, 169 (Iowa 2017)

(reversing jury verdict and remanding for new trial after district court failed

to provide instruction on statute of limitations, recognizing district court’s

obligation to correctly instruct the jury on legal issues raised by parties

even if requested instruction misstated the applicable legal principle).
Rather, we apply the statute and applicable caselaw in determining

whether the district court erred in denying the defendants’ motion for

directed verdict.

A. The Plaintiff’s Prima Facie Case for Disability

Discrimination and Failure-to-Accommodate Claims. Under the ICRA,

an employer engages in “an unfair or discriminatory practice” if it

discharges an employee “because of the . . . disability of such . . .
employee.” Iowa Code § 216.6(1)(a) (2017). The ICRA “only pronounces a
 13

general proscription against discrimination and we have looked to the

corresponding federal statutes to help establish the framework to analyze

claims and otherwise apply our statute.” Casey’s Gen. Stores, Inc. v.

Blackford, 661 N.W.2d 515, 519 (Iowa 2003).

To prevail on a disability discrimination claim under the ICRA,
[Rumsey] must initially prove a prima facie case by showing:
(1) he has a disability, (2) he is qualified to perform the
essential functions of [the job], and (3) the circumstances of
his termination raise an inference of illegal discrimination.

Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014).

For his separate claim for failure to provide a reasonable

accommodation, Rumsey must prove he was a qualified individual, his

employer knew of his disability, he requested a reasonable

accommodation, and he suffered an adverse employment action. See

Garrison v. Dolgencorp, LLC, 939 F.3d 937, 941 (8th Cir. 2019) (describing

elements of failure-to-accommodate claim under the Americans with

Disabilities Act (ADA)); Gardea v. JBS USA, LLC, 915 F.3d 537, 541 (8th

Cir. 2019) (defining elements for failure to accommodate under both ADA

and ICRA). The “qualified individual” element requires proving he could

“perform the essential functions of [the] position, with or without

reasonable accommodation.’ ” Gardea, 915 F.3d at 541 (second quoting
Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013)).

The element at issue here is whether Rumsey was qualified to

perform the essential functions of the job.2

B. Does the “Bead Taping” Job Satisfy Rumsey’s Burden of

Proving He Was a Qualified Individual? “The first step of our inquiry”

into the qualified individual element is whether Rumsey “could perform

2Windsor does not dispute that Rumsey’s hearing impairment as well as his back
and shoulder injuries satisfy the first element that Rumsey was disabled for purposes of
the ICRA.
 14

the essential functions of the job.” Goodpaster, 849 N.W.2d at 14 (second

quoting Boelman v. Manson State Bank, 522 N.W.2d 73, 80 (Iowa 1994)).

“[T]he court must consider whether the person has ‘the requisite skill,

experience, education and other job-related requirements of the

employment position that such individual holds or desires.’ ” Schlitzer v.

Univ. of Iowa Hosps. & Clinics, 641 N.W.2d 525, 531 (Iowa 2002) (quoting

Treanor v. MCI Telecomms. Corp., 200 F.3d 570, 575 (8th Cir. 2000)); see

also Goodpaster, 849 N.W.2d at 14 (explaining whether an employee is

“qualified” depends on “the needs of a particular job[] and the impact of
disability on a person’s ability to perform that job” (second quoting

Courtney v. Am. Nat’l Can Co., 537 N.W.2d 681, 685 (Iowa 1995))).

In July, Rumsey reached MMI for his back injury and his doctor

imposed a permanent ten-pound lifting restriction. However, at the time

of his termination in December, he was still attending physical therapy

following his shoulder surgery, and that injury had not yet reached MMI.

The parties agree the heavy-lifting requirements of the IG Wrap job

precluded Rumsey from returning to that position. That is not the end of

the inquiry, however, because an employee can also show he is a qualified

individual by identifying another position to which he could have been

reassigned. See Schlitzer, 641 N.W.2d at 530–31 (considering whether

hospital discriminated against nurse who sought reassignment); see also

Iowa Admin. Code r. 161—8.28 (“When an individual becomes disabled,

from whatever cause, during a term of employment, the employer shall

make every reasonable effort to continue the individual in the same

position or to retain and reassign the employee and to assist that

individual’s rehabilitation.”). Thus, if an employee is unable to return to
his former job, we look next to whether other jobs existed that he could
 15

perform with or without accommodation. See Schlitzer, 641 N.W.2d at

530.

Rumsey “must identify a specific available job [he] is qualified to

perform to ultimately recover under the [ICRA].” Casey’s Gen. Stores, Inc.,

661 N.W.2d at 521. “Without this showing, an employee cannot establish

he or she is a qualified person.” Id.; see also Schlitzer, 641 N.W.2d at 530

(“[The employee] has the burden of making a prima facie case that there

was a job available and that she was qualified to fill it.”).

Rumsey identifies the Fabricator position, which is the position
identified in Windsor’s personnel records at the time of his termination.

He claims he performed “multiple jobs within his restrictions, including

beading, maintenance, cleaning, floor scrubbing, glass quality inspection,

putting screws in hinges, and organizing hardware.” Rumsey identified

the “beading” job throughout trial as the job he had been performing at

the time of his termination and the one he was qualified to perform for

purposes of his disability discrimination claims.

Reassignment requires the employee to identify a currently available

vacant position the employee is qualified to perform. See Casey’s Gen.

Stores, Inc., 661 N.W.2d at 521; see also Schlitzer, 641 N.W.2d at 530.

“[A]n accommodation by reassignment does not require an employer to

respond by creating a vacant position.” Casey’s Gen. Stores, Inc., 661

N.W.2d at 521; see also Schlitzer, 641 N.W.2d at 530. Nor does it require

the employer to create a new job from tasks taken from other employees,

see Hoskins v. Oakland Cnty. Sheriff’s Dep’t, 227 F.3d 730 (6th Cir. 2000)

(affirming summary judgment for employer who refused deputy’s

requested reassignment to work full time in prison control booth where
those duties were considered “easier” and rotated among all deputies as a

relief position), or to turn a temporary light-duty position into a permanent
 16

position, see Malabarba v. Chi. Trib. Co., 149 F.3d 690, 697 (7th Cir. 1998)

(“Although the ADA provides that reassignment to a vacant position may

constitute a reasonable accommodation, it does not require that employers

convert temporary ‘light-duty’ jobs into permanent ones.”); see also Rehrs

v. Iams Co., 486 F.3d 353, 359 (8th Cir. 2007) (“P & G [was not] required

to create a new straight-shift technician position or similar position to

accommodate Rehrs.”); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944,

950 (8th Cir. 1999) (“Pizza Hut [is not] required to create a new position or

to create a permanent position out of a temporary one as an
accommodation.”); Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)

(“The ‘casing’ position to which he was temporarily assigned was not an

official position, but had been created by the Postal Service to give Shiring

something to do on a temporary basis. Therefore, Shiring’s suggestion

that he would have been qualified to perform the requirements of such a

position does not help his case because under the Act employers are not

required to create positions specifically for the handicapped employee.”).

With respect to not requiring employers to turn temporary workplace

accommodations into permanent positions that did not previously exist,

one court explained that if the law said otherwise, “[e]mployers would stop

offering temporary light-duty assignments to accommodate temporary

disabilities, fearing that their temporary elimination of certain essential

functions of the job for those temporarily-disabled employees would force

them to make their elimination permanent.” Williams v. Eastside

Lumberyard & Supply Co., 190 F. Supp. 2d 1104, 1114 (S.D. Ill. 2001).

The accommodation Rumsey requested for his permanent back injury

makes this point. Rumsey requested an accommodation for a sit-down
position because standing hurt his back. The fourth element of Rumsey’s

failure-to-accommodate claim as instructed to the jury required Rumsey
 17

to prove he “could have performed the essential functions of his job at the

time of his termination if [he] had been provided with sit down work . . . .”

The only position Rumsey identified that he could perform while sitting

down was the bead-taping work.

The problem with Rumsey’s argument is that bead taping was not a

permanent job. It was a light-duty, temporary position created to give him

suitable work while he was recuperating from his workplace injuries. It

was not an actual full-time job. As Windsor described it, and Rumsey did

not dispute, it is more accurately characterized as a task needed to be
done as part of a number of duties involved in the Fabricator position.

Windsor pulled that task out of other employees’ job duties to provide light-

duty work for Rumsey consistent with the restrictions imposed while he

was rehabilitating from his injuries.

While Rumsey testified at trial that he worked at the bead-taping

station “full time,” that was after he explained “[b]eading was part of my

light-duty restriction.” Rumsey confirmed he never worked a full forty

hours during any week at the bead-taping station, testifying only that he

could have worked the position full time had he not needed to take time

off for his back pain. It is undisputed that he only performed that work

on a part-time basis over four weeks, during which he worked seven hours,

sixteen hours, thirty-one hours, and six hours, respectively.

Rumsey’s reliance on Mallaney’s testimony does not support his

assertion that bead-taping was a full-time position. While Rumsey’s

attorney may have characterized it as such in questioning Mallaney, her

testimony made clear that it was a temporary light-duty position.3

3Mallaney’s testimony was consistent between questioning by the plaintiff’s

counsel:
 18

Coppock also testified that if someone worked at the bead-taping

station as their only job, it would take fifteen minutes to bead the amount

of sashes that could be produced in an hour, so that there was not enough

work to keep a person busy if they only worked at the bead-taping station

as a full-time position. Rumsey offered no evidence to contradict this

explanation of the bead-taping work. Construing the evidence in the light

most favorable to Rumsey, he failed to establish that the bead-taping

position was anything other than a light-duty job provided to him on a

temporary basis while he finished rehabilitating his workplace injuries.

Q. And Ron’s job involved putting little strips of bead or foam along
these thin light boards; right? A. Right. That was a small part of a job
that an employee would do, yes, yes. It’s called beading . . . .
Q. Beading. And this job that Ron was doing, putting the strips of
bead, he performed full-time; right? A. With light-duty. Yes.
....
Q. As you testified, that was full-time work; right? A. Light-duty
work for him, yes.
....
Q. Right. Now, Ron was certainly qualified to do the job as
fabricator that he was performing; right? A. That one spot there, yes.
....
Q. And had he not been fired, he could have continued on in that
position; right? A. Like I said, that was a small part of another job.
Q. Ma’am, my -- I appreciate -- A. Yes.
....
Q. Had Ron not been fired, he could have stayed in that full-time
position; correct? A. With the light-duty restrictions, yes.
And by defense counsel:
Q. Does the bead taping line station, is it a full-time, full-duty
position for anybody at Windsor? A. You mean by that is that the only
job they do?
Q. Right. A. No. There’s a variety of jobs that come with that.
That doesn’t take -- that’s -- that’s -- like I said, that’s a little bit of a job
that an employee does.
Q. So when Mr. Rumsey was doing this job, this was a small part
of other people’s jobs? A. Right.
 19

Rumsey’s argument that Windsor was required to engage in the

interactive process before firing him does not save his claim. “Even if an

employer fails to fully assist an employee in a request for reassignment,

the employee must still show a specific position was available that he or

she could have sought.” Casey’s Gen. Stores, Inc., 661 N.W.2d at 521; see

also Burns v. Coca–Cola Enters., Inc., 222 F.3d 247, 258 (6th Cir. 2000)

(“Burns simply did not show that he was qualified to perform the positions

that he now identifies in his brief as potential accommodations.”);

Fjellestad, 188 F.3d at 952 (“[A]n employer will not be held liable under
the ADA for failing to engage in an interactive process if no reasonable

accommodation was possible . . . .”); Smith v. Midland Brake, Inc., 180 F.3d

1154, 1174 (10th Cir. 1999) (en banc) (“Even if Midland Brake failed to

fulfill its interactive obligations to help secure a reassignment position,

Smith will not be entitled to recovery unless he can also show that a

reasonable accommodation was possible and would have led to a

reassignment position.”).

Rumsey relies solely on the temporary light-duty work Windsor

provided for him. But to bring a disability discrimination or failure-to-

accommodate claim, he bears the burden of first proving he was a qualified

individual, which includes identifying a permanent position he was

qualified to perform, given the proper accommodations. The only

accommodation he suggests is a sit-down position. His failure to present

any evidence that Windsor had a permanent position that could be

performed with that accommodation precludes his disability-

discrimination-based claims. See Casey’s Gen. Stores, Inc., 661 N.W.2d at

521; see also Williams, 190 F. Supp. 2d at 1117 (“While Eastside did
accommodate Williams’ temporary condition for two years, the duration of

an arrangement to accommodate an employee’s temporary condition is
 20

not, by itself, sufficient to show that the arrangement was meant to last

forever.”).

We cannot ignore Rumsey’s obligation, as part of his prima facie

case, to identify a permanent position to which he could have been

reassigned. As we explained in Casey’s General Stores, Inc. v. Blackford,

[a]lthough we interpret our statute to impose a duty on an
employer to accommodate a worker who is unable to perform
his or her job because of a disability, we still require an
employee who seeks reassignment as an accommodation to
show, as a predicate to recovery, that reassignment to a
vacant position could have been accomplished. It is not
enough for the employee to make a general claim of the
existence of the vacant position.

661 N.W.2d at 523 (citation omitted). Here, Rumsey does not even claim

such a position existed outside of the temporary light-duty work Windsor

provided while he continued to rehabilitate his shoulder injury.

Requiring the employee to identify a specific vacant position for

which he is qualified is consistent with the protections provided by the

ICRA.

Like the ADA, our unfair employment practices statute
exists to eliminate discrimination against persons with
disabilities, as well as discrimination based on other protected
characteristics. We interpret the statute consistent with this
purpose so that persons with disabilities will not suffer
discrimination at the hands of employers in this state.

Id. at 525 (citation omitted). Nevertheless, as a predicate to recovery for a

claim under the ICRA, we require a claimant to “show he or she was

qualified to perform a specific vacant position sought.” Id. Where the

claimant “fail[s] to satisfy this burden,” the claim fails as a matter of law.

Id. at 517–19, 525 (“conclud[ing] as a matter of law that Blackford failed

to establish he was a qualified employee” and affirming the district court’s
reversal of Civil Rights Commission award on disability discrimination

claim).
 21

Rumsey argues he is excused from proving this element of his

disability-discrimination-based claims because Windsor did not assert it

fired him for lack of temporary work. Rumsey relies on this reasoning to

distinguish the line of cases holding an employer is not required to create

a permanent position out of a temporary light-duty job it provides for an

employee on a temporary basis. While Rumsey cites Taylor v. Garrett, 820

F. Supp. 933 (E.D. Pa. 1993), to support his position, he fails to provide

any legal analysis explaining the difference that factual distinction makes.

Our review of that case does not support Rumsey’s position.
Taylor is a district court case denying summary judgment when an

employee was terminated while working in a light-duty position after a

work injury prevented him from continuing to work as a rigger. Id. at 939–

40. In Malabarba v. Chicago Tribune Co., the United States Court of

Appeals for the Seventh Circuit, as have other courts, distinguished Taylor

“in one very significant way—the plaintiff[] . . . [was] assigned to [a]

permanent ‘light-duty’ assignment[], whereas Malabarba’s ‘light-duty’

work assignment as a material handler was only temporary.” 149 F.3d at

697 (emphasis omitted); see also Sharpe v. Henderson, No. CV–00–71–ST,

2001 WL 34039485, at *7 (D. Or. Oct. 19, 2001) (distinguishing Taylor on

the same basis); Copeland v. Chrysler Corp., No. 211109, 2000 WL

33533981, at *3 (Mich. Ct. App. Feb. 11, 2000) (per curiam) (same). The

same is true here where the only evidence presented at trial made clear

Windsor had no permanent light-duty positions, including the bead-taping

position presented to the jury.

As explained above, in disability-discrimination-based claims, the

employee carries the burden of first proving he is qualified, i.e., able to
perform the essential functions of a permanent and vacant job. Rumsey’s

only response is that “[t]he jury could reasonably infer Defendants would
 22

not have retained [Rumsey] if he were unqualified or could not physically

perform his job.” But the defendants’ actions of providing a temporary

light-duty position while Rumsey was rehabilitating his workplace

shoulder injury as part of his worker’s compensation claim does not satisfy

Rumsey’s obligation of identifying a permanent and vacant position he was

qualified to perform, a necessary predicate for his disability discrimination

claims.

Rumsey seems to be arguing that this is a mixed-motives case, not

a direct-evidence failure-to-accommodate case, so that a different
standard applies. Rumsey does not expand on this argument (or explain

how a different standard would be applied), and we reject it. The reason

Windsor terminated Rumsey becomes relevant only after Rumsey first

establishes a prima facie case of disability discrimination or failure to

accommodate, both of which include showing that he was a qualified

individual. See Casey’s Gen. Stores, Inc., 661 N.W.2d at 525. Thus, unless

he can show he was a qualified individual, the fact that he was terminated

for a reason other than an ability to continue the work he was performing

has no bearing on his disability discrimination claims.

An analogous situation can be seen in Fjellestad v. Pizza Hut of

America, Inc., 188 F.3d 944. After a Pizza Hut store manager was seriously

injured in a car accident, Pizza Hut promoted another shift manager as an

interim comanager to perform some of her duties so she could continue

working part time while recuperating. 188 F.3d at 947. Her doctor

imposed restrictions of working no more than thirty-five to forty hours per

week and no more than three consecutive days. Id. Despite glowing

reviews prior to her accident, she was eventually terminated for
performance reasons three weeks after her doctor determined she had

reached maximum recovery. Id. at 947–48. She sued for disability
 23

discrimination, and the district court granted summary judgment for Pizza

Hut on the basis the employee failed to establish a prima facie case of

disability discrimination. Id. at 948.

On appeal, the fact that Pizza Hut fired the manager for

performance-based reasons rather than an inability to perform her job had

no effect on the Eighth Circuit’s analysis. Rather, the court considered

whether the employee submitted sufficient evidence to create a fact issue

on the elements of her prima facie case, including whether Pizza Hut could

have reasonably accommodated her disability. Id. at 950–51. The Eighth
Circuit concluded her request to make the comanager position permanent

failed as a matter of law because Pizza Hut was not required to “create a

permanent position out of a temporary one as an accommodation.” Id. at

950. It reversed summary judgment, however, because Fjellestad had

made a sufficient showing “and created a genuine issue of material fact”

as to whether she could have performed another vacant position,

identifying the shift manager position vacated by the interim comanager

when she was permanently promoted to store manager. Id. at 950–51.

“After Fjellestad made this facial showing that reasonable accommodation

was possible, the district court should then have shifted the burden to

Pizza Hut to prove that it was unable to accommodate Fjellestad through

reassignment to this position.” Id. at 951. That Pizza Hut did not claim it

fired her because it could not accommodate her disabilities played no part

in the court’s analysis of whether the plaintiff met her burden to establish

a prima facie case.

The same reasoning applies when an employer provides temporary

light-duty tasks to accommodate an employee recuperating from work-
related injuries and then fires the employee for reasons unrelated to his

ability to perform the work. To establish a valid disability discrimination
 24

claim, the employee must still present evidence that he was a qualified

employee able to perform the essential functions of his job or another

permanent vacant job. Rumsey failed to “make a facial showing that

reasonable accommodation [wa]s possible,” id. at 950, and Windsor was

entitled to judgment as a matter of law on Rumsey’s disability

discrimination and failure-to-accommodate claims.

C. Retaliation for Requesting a Sit-Down Accommodation.

Although we review the retaliation claim under a somewhat different legal

analysis, we likewise conclude that Rumsey failed to present evidence to
support submitting his retaliation claim related to the sit-down

accommodation to the jury.

The ICRA makes it

an unfair or discriminatory practice for: . . . Any person to . . .
retaliate against another person in any of the rights protected
against discrimination by this chapter because such person
has lawfully opposed any practice forbidden under this
chapter, obeys the provisions of this chapter, or has filed a
complaint, testified, or assisted in any proceeding under this
chapter.

Iowa Code § 216.11(2). The ICRA anti-retaliation provision is worded

similarly to the ADA. Compare id., with 42 U.S.C. § 12203(a) (“No person
shall discriminate against any individual because such individual has

opposed any act or practice made unlawful by this chapter or because

such individual made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this chapter.”).

A prima facie case of retaliation under the ICRA requires the plaintiff to

establish (1) he was engaged in statutorily protected activity, (2) he was

subjected to an adverse employment action, and (3) a causal connection

between his participation in the protected activity and the adverse
 25

employment action. Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 750 (Iowa

2006).

Neither the ICRA nor the ADA identifies requesting an

accommodation for a disability as protected activity. Yet, courts generally

recognize that requesting a reasonable accommodation is protected

activity that supports a retaliation claim. See Kirkeberg v. Canadian Pac.

Ry., 619 F.3d 898, 908 (8th Cir. 2010) (“[A]lthough ‘[i]t is questionable’

whether an employee who merely requests a reasonable accommodation

‘fits within the literal language of the statute,’ we are bound by Heisler [v.
Metropolitan Council, 339 F.3d 622 (8th Cir. 2003)] to conclude that

making such a request is protected activity for purposes of 42 U.S.C.

§ 12203(a).” (second alteration in original) (citation omitted) (quoting

Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997))).

We have not directly addressed whether requesting an

accommodation is protected activity under the ICRA. Assuming it is, the

employee must still show his request for an accommodation was

sufficiently related to a claimed disability so that the requested

accommodation could be considered “lawfully oppos[ing] any practice

forbidden under” chapter 216. Iowa Code § 216.11(2). This requirement

keeps a retaliation claim within the confines of the statute, which prohibits

retaliation only with respect to “any of the rights protected against

discrimination by this chapter.” Id. Thus, requesting an unreasonable

accommodation, such as one not aimed at enabling the employee to

perform the essential functions of a job, would not be considered opposing

a practice forbidden by chapter 216.

Requiring Rumsey to prove, as part of his retaliation claim, that he
requested an accommodation that would allow him to perform the

essential functions of the job is also consistent with the jury instructions.
 26

Instruction No. 21 required Rumsey to prove he “engaged in protected

activity by requesting a reasonable accommodation for a disability,” and

Instruction No. 28 defined “a ‘reasonable accommodation’ [a]s a

modification . . . which would enable a qualified individual with a disability

to perform the essential functions of the position.”

Federal courts recognize a similar limiting principle by requiring a

good-faith belief that the requested accommodation was “appropriate”

within the context of the ADA. See Heisler, 339 F.3d at 632 (“ ‘An

individual who is adjudged not to be a “qualified individual with a
disability” may still pursue a retaliation claim under the ADA’ as long as

she had a good faith belief that the requested accommodation was

appropriate [under the ADA].” (citations omitted) (quoting Mondzelewski v.

Pathmark Stores, Inc., 162 F.3d 778, 786 (3d Cir. 1998))). A request for an

accommodation that clearly would not enable the employee to perform the

essential functions of his job would not be reasonable, and therefore not

appropriate, so there would no basis for finding that the employee was

engaged in protected activity. See Monroe v. Fla. Dep’t of Corr., 793 F.

App’x 924, 928 (11th Cir. 2019) (per curiam) (“Monroe’s only purported

protected activity was his request for indefinite leave. Because our caselaw

was and is clear that a request for indefinite leave is not a reasonable

accommodation, Monroe could not have had a good faith, reasonable belief

that he was engaging in protected activity.”); see also Williams, 190 F.

Supp. 2d at 1122 n.15 (“[T]o the extent that Williams was requesting to

remain on light-duty indefinitely, this was not a request for a reasonable

accommodation. It is even more doubtful whether the ADA anti-retaliatory

provisions would consider requesting unreasonable accommodations as
‘protected activity.’ ” (emphasis omitted)).
 27

Analogous to Monroe v. Florida Department of Corrections, our

caselaw makes clear that an accommodation is not reasonable if it requires

the employer to create a new position. See Casey’s Gen. Stores, Inc., 661

N.W.2d at 521; see also Schlitzer, 641 N.W.2d at 530. As discussed above,

the only position Rumsey identified that could be performed sitting down

was the temporary light-duty work he performed at the bead-taping

station. The request for a sit-down accommodation would have required

Windsor to create a new position. Therefore, Rumsey cannot be said to

have been engaging in the protected activity of opposing disability
discrimination under the ICRA when he requested a sit-down restriction

because that was clearly not a reasonable accommodation that would have

enabled him to perform the essential functions of an available job.

Rumsey failed to establish he was engaged in statutorily protected

activity under the ICRA, the first element of a retaliation claim, see Boyle,

710 N.W.2d at 750, and the district court should have granted a directed

verdict in favor of the defendants with respect to his request for a sit-down

accommodation.

D. Claims Related to Rumsey’s Hearing Impairment and

Request for a Sign Language Interpreter. Windsor does not dispute that

Rumsey’s hearing impairment is a disability. Rumsey filed his

administrative claim with the Iowa Civil Rights Commission 295 days after

he was terminated, so the only actionable conduct related to

accommodating Rumsey’s hearing impairment within the 300-day

statutory period, see Iowa Code § 216.15(13), was Rumsey’s request on

December 15 for a sign language interpreter for the meeting with Crivaro.

In instructing the jury on each of Rumsey’s theories of recovery, the
court submitted Rumsey’s request for a sign language interpreter together

in the same instructions with his request for a sit-down accommodation,
 28

as requested by the parties. Now that we have concluded the defendants

are entitled to judgment as a matter of law on each claim premised on the

request for a sit-down accommodation, it is difficult to parse out the claims

related solely to the request for an interpreter. Unless the claims related

to Rumsey’s request for an interpreter also fail as a matter of law, remand

for a new trial on those claims will be necessary. See Alcala v. Marriott

Int’l, Inc., 880 N.W.2d 699, 710 (Iowa 2016) (“A new trial is required after

a general verdict is returned for the plaintiff if the evidence was insufficient

to submit one of several specifications of negligence.”); Erickson v. Wright
Welding Supply, Inc., 485 N.W.2d 82, 86 (Iowa 1992) (“In civil cases, ‘when

a trial court errs in submitting even one of several theories of recovery and

the jury returns only a general verdict for the plaintiff the verdict cannot

stand and the defendant is entitled to a new trial.’ ” (quoting Gordon v.

Noel, 356 N.W.2d 559, 565 (Iowa 1984))).

1. Discrimination claim. After Rumsey refused to sign the work

restrictions without a sit-down restriction and after the meeting in

Mallaney’s office, Mallaney told Rumsey he would need to talk to Crivaro.

Rumsey requested a sign language interpreter for that meeting because he

had trouble keeping track of what everyone was saying in meetings with

multiple people, so an interpreter made it easier to understand and to

communicate. But Crivaro decided to terminate Rumsey based on

Mallaney and Coppock’s recommendation, so there was never a meeting

that would have required an interpreter.

Rumsey claimed Windsor discriminated against him because he was

hearing-impaired. To prove his discrimination claim, Rumsey was

required to prove: (1) he had a disability, (2) he was qualified to perform
the essential functions of the job, and (3) the circumstances of his

termination raised an inference of discrimination. See Goodpaster, 849
 29

N.W.2d at 6. Our determination that Rumsey failed to establish he could

perform the essential functions of any available job at Windsor means he

failed to establish a claim for discrimination under either claimed

disability, including his hearing impairment.

2. Failure-to-accommodate and retaliation claims. Rumsey’s request

for an interpreter requires a different analysis. With respect to his failure-

to-accommodate claim, a requested accommodation does not necessarily

need to enable the employee to perform an essential function of his daily

tasks to be a reasonable accommodation. See, e.g., EEOC v. UPS Supply
Chain Sols., 620 F.3d 1103, 1111 (9th Cir. 2010) (“UPS concedes that

understanding and participating in mandatory departmental meetings are

‘benefits and privileges of employment’ . . . .” (quoting 29 C.F.R.

§ 1630.2(o)(1)(iii))). A jury could find that Rumsey’s request for an

interpreter for the meeting with Crivaro was a request for a reasonable

accommodation. It was an important meeting, and evidence showed

Rumsey had requested (and received) an interpreter for other similar

meetings in the past.

Although the jury returned a verdict in Rumsey’s favor on the

failure-to-accommodate claim, the record does not reveal whether the jury

based its verdict on the request for a sit-down instruction or the request

for an interpreter. Likewise, the defendants were entitled to judgment if

they established they would have made the same employment decision

notwithstanding the requested accommodation. See Hawkins v. Grinnell

Reg’l Med. Ctr., 929 N.W.2d 261, 272 (Iowa 2019) (“[I]n discrimination and

retaliation cases under ICRA, we apply the Price Waterhouse[4] motivating-

4Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989) (plurality
opinion), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, § 107(a),
105 Stat. 1071, 1075 (codified at 42 U.S.C. § 2000e–2(m) (1994)).
 30

factor standard in instructing the jury and the defendant is entitled to an

instruction on the same-decision defense recognized in Price Waterhouse

if properly pled and proved.”). As instructed, the jury had to consider

whether Windsor would have made the same decision despite the request

for both the sit-down restriction and the interpreter, but we cannot tell

which basis the jury relied on for its verdict. Defendants are therefore

entitled to a new trial on Rumsey’s claim for failure to accommodate his

request for an interpreter.

On remand, Windsor will have to prove it would have made the same
decision even if it had not taken into account the request for an interpreter.

Id. We note in remanding the case for a new trial that a failure-to-

accommodate claim is not, as Rumsey argues, a strict-liability claim. See

Minnihan v. Mediacom Commc’ns Corp., 779 F.3d 803, 813 (8th Cir. 2015)

(“There is no per se liability under the ADA if an employer fails to engage

in the interactive process.”).

Similarly, requesting a sign language interpreter for a meeting with

HR could be considered protected activity for purposes of Rumsey’s

retaliation claim. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136

(8th Cir. 1999) (en banc) (concluding “Kiel’s requests for a

[telecommunications device (TDD)] were protected communications” for

purposes of a retaliation claim). The request for an interpreter is not per

se unreasonable in the same way as the request for a sit-down restriction.

Providing a sign language interpreter for an important meeting is akin to

providing a ramp into the building for a wheelchair-bound employee. See,

e.g., Iowa Admin. Code r. 161—8.27(6)(a) (providing examples of

reasonable accommodations to include “[m]aking facilities used by
employees readily accessible to and usable by handicapped persons” and

providing “readers or interpreters”); 42 U.S.C. § 12111(9) (same). A
 31

retaliation claim focuses on protected activity, and the defendants do not

dispute that, as a general matter, a hearing-impaired employee who

requests an interpreter for an important meeting has engaged in protected

activity.

Nonetheless, an employee who engages in terminable conduct

cannot avoid the consequences of his actions by then requesting an

accommodation for those actions. See, e.g., Schaffhauser v. United Parcel

Serv., Inc., 794 F.3d 899, 906 (8th Cir. 2015) (“[L]iability is not established

where ‘an employee engages in misconduct, learns of an impending
adverse employment action, and then informs his employer of a disability

that is the supposed cause of the prior misconduct and requests an

accommodation.’ ” (quoting Schaffhauser v. United Parcel Serv., Inc.,

No. 4:12–cv–00599 KGB, 2014 WL 197684, at *10 (E.D. Ark. Jan. 15,

2014), aff’d, 794 F.3d 899 (8th Cir. 2015))); Hill v. Kan. City Area Transp.

Auth., 181 F.3d 891, 894 (8th Cir. 1999) (holding a request for an

accommodation by a bus driver, after she fell asleep twice while on the job,

was untimely because the request was made after she engaged in

terminable misconduct).

The fighting issue on the retaliation claim is whether Rumsey

established a causal connection between his participation in the protected

activity and the adverse employment action. See Boyle, 710 N.W.2d at

750. We start with the proper standard for assessing that causal

connection. We recently refined the standard in Haskenhoff v. Homeland

Energy Solutions, LLC, where we held that “the motivating factor causation

standard” applies to retaliation claims under the ICRA. 897 N.W.2d 553,

602 (Iowa 2017) (Cady, C.J., concurring in part and dissenting in part)
(concurring with Appel, J., to “adopt the motivating factor causation

standard” for retaliation claims under the ICRA); see also Hawkins, 929
 32

N.W.2d at 271 (discussing Haskenhoff and explaining “[t]he motivating-

factor standard is a lower standard than the determining-factor

standard”). Part and parcel of the motivating-factor standard, the

employer is allowed to then assert the same-decision affirmative defense.

Hawkins, 929 N.W.2d at 272.

Rumsey relies heavily, indeed almost exclusively, on the timing of

his termination to establish that his request for an interpreter was a

motivating factor when he was terminated within hours after requesting

an interpreter for the meeting with Crivaro. “Generally, more than a
temporal connection between the protected conduct and the adverse

employment action is required to present a genuine factual issue on

retaliation.” Kiel, 169 F.3d at 1136; see also Feltmann v. Sieben, 108 F.3d

970, 977 (8th Cir. 1997); Nelson v. J.C. Penney Co., 75 F.3d 343, 346–47

(8th Cir. 1996). The defendants argue that Rumsey was terminated based

on his insubordinate behavior, which would be sufficient to negate reliance

solely on the temporal proximity of the protected activity to the

termination. See Kiel, 169 F.3d at 1136 (“Insulting Ms. Fry and indulging

in an angry outburst in the presence of co-workers, however, were

certainly not [protected], for the ADA confers no right to be rude. Kiel’s

intervening unprotected conduct eroded any causal connection that was

suggested by the temporal proximity of his protected conduct and his

termination.”). The defendants’ argument that requesting an

accommodation following Rumsey’s insubordinate conduct was too little

too late is a valid legal position, but it relies on the jury finding that

Rumsey was fired for engaging in insubordination, a finding apparently

rejected by the jury as the case was presented to it.
In reviewing the sufficiency of the evidence following a jury verdict,

we must construe the evidence in the light most favorable to the verdict.
 33

See Ludman v. Davenport Assumption High Sch., 895 N.W.2d 902, 909

(Iowa 2017) (“ ‘A directed verdict is required “only if there was no

substantial evidence to support the elements of the plaintiff’s claim.” ’ We

‘view the evidence in the light most favorable to the nonmoving party and

take into consideration all reasonable inferences that could be fairly made

by the jury.’ ” (citation omitted) (quoting Pavone, 801 N.W.2d at 487)).

Here, Rumsey testified that he did not engage in the behavior claimed by

Mallaney and Coppock. Leaving credibility determinations to the jury, the

alleged insubordinate behavior cannot, as a matter of law, defeat the
inferences from the temporal relationship between the request and the

termination.

The record presented at trial provides only limited evidence to

support a finding that Rumsey’s request for a sign language interpreter

motivated his termination. Rumsey focused on proving that his

termination was motivated by his request for a sit-down restriction, which

was the topic to be discussed at the meeting for which he requested the

interpreter—the meeting that never happened. While characterizing the

events differently, all parties presented significant evidence that Rumsey’s

termination was caused by the disagreement over his request for a sit-

down restriction, whether by improper retaliation, as Rumsey claimed, or

by Rumsey’s insubordinate response, as the defendants claimed. Further,

Rumsey admitted that Windsor had previously provided an interpreter

when requested for similar meetings, lessening the plausibility of any

inference that it was the request for an interpreter rather than the dispute

over the sit-down restriction that motivated Rumsey’s termination. See

Kiel, 169 F.3d at 1136 (holding employee failed to present triable issue on
claim employer terminated his employment in retaliation for his request

for a TDD where “he had requested a TDD on numerous occasions, but he
 34

suffered no adverse employment action until he engaged in abusive,

derogatory conduct towards his employer”).

Nonetheless, we cannot say as a matter of law that the jury could

not have found that Rumsey’s request for an interpreter was not a

motivating factor in his termination. While temporal proximity is generally

insufficient alone to establish the causal connection, Rumsey was fired

within hours of requesting an interpreter for a meeting with Crivaro, a

meeting that was cancelled after Rumsey was fired instead of being

provided with the meeting and requested interpreter. Rumsey had also
made clear to Coppock and Mallaney that he was going home and would

not return for the meeting unless they got an interpreter, questioning their

ability to provide one.

As the case was presented and instructed to the jury, we cannot tell

whether the jury found retaliation based on the request for a sit-down

restriction, the request for an interpreter, or both. As such, we must

reverse and remand for a new trial, limited to Rumsey’s failure-to-

accommodate and retaliation claims related to requesting a sign language

interpreter. See Alcala, 880 N.W.2d at 710; Erickson, 485 N.W.2d at 86.

E. Individual Liability Under the ICRA. The defendants are

entitled to judgment on all claims except Rumsey’s failure-to-

accommodate and retaliation claims premised on requesting an

interpreter. While both parties raised a number of additional issues on

appeal, we need not address the other issues that are mooted or not likely

to arise in the same manner in a new trial. The parties both raise claims

related to damages, which are mooted by our opinion. Any damages

awarded on remand will be assessed in light of the evidence presented at
the new trial. The evidentiary issues raised by both parties involve

discretionary calls by the trial court, and to the extent they may arise
 35

again, admissibility of the challenged evidence will depend on its relevance

to the remaining claims limited to the request for an interpreter. However,

the issue of individual liability will arise again on retrial, so we address

that issue.

Mallaney and Coppock argue that the district court erred in refusing

to instruct the jury on their individual liability and provide a line on the

verdict form separate from Windsor’s liability. First, they ask us to limit

individual liability under the ICRA to supervisory employees, which they

define narrowly as those with final decision-making authority. Second,
they argue that even if they could be subject to individual liability under

the ICRA, their liability must be assessed independently of each other and

of Windsor as Rumsey’s employer.

Taking the issues in the reverse order, we agree individual liability

must be assessed separately. Rumsey argues that the district court need

not distinguish between Windsor and the individual defendants because

Windsor can only act through its employees. While true, the opposite is

not also necessarily true. Rumsey essentially argues for a reverse-

vicarious-liability theory, which we reject, particularly where there is more

than one individual defendant. An individual defendant facing liability

under the ICRA is entitled to an individualized assessment of their liability

and a separate line on the verdict form.

With respect to whether these individuals may be personally liable,

we start with the premise that chapter 216 extends individual liability at

least to supervisors, which we know from Vivian v. Madison, 601 N.W.2d

872, 872 (Iowa 1999) (answering a certified question from federal district

court expressly limited to whether a supervisory employee could be subject
to personal liability for employment discrimination under section 216.6).

As we explained in Vivian, the Iowa general assembly’s “use of the words
 36

‘person’ and ‘employer’ in section 216.6(1), and throughout the chapter,

indicates a clear intent to hold a ‘person’ subject to liability separately and

apart from the liability imposed on an ‘employer.’ ” Id. at 878. Our

extension of liability to individuals who are not also the employer was

supported by both the broad scope of chapter 216, see id. at 874

(discussing “section 216.18, which states that the chapter should be

construed broadly to effectuate its purposes”), as well as the aiding-and-

abetting provision of section 216.11(1), which indicated the general

assembly intended chapter 216 liability to extend further than Title VII,
which had no comparable provision, see id. at 873–74. We have not

addressed individual liability under ICRA beyond Vivian.

Mallaney and Coppock ask us to limit chapter 216 liability to

supervisory employees with decision-making authority over employment

actions involving the plaintiff, relying on federal caselaw construing

section 216.6. See, e.g., Erickson–Puttmann v. Gill, 212 F. Supp. 2d 960,

976 (N.D. Iowa 2002) (“The Nelson decision, and the Iowa Supreme Court’s

decisions underlying it, are in keeping with the express language of Iowa

Code § 216.6(1)(a) which limits discriminatory acts to acts which imply

that the actor has decision making authority over employment actions.”);

Nelson v. Wittern Grp., Inc., 140 F. Supp. 2d 1001, 1009 (S.D. Iowa 2001)

(“Before an individual may be found liable under Iowa civil rights law, he

or she must be found to have ‘control [of] the company’s hiring decisions.’ ”

(alteration in original) (quoting Vivian, 601 N.W.2d at 876)). Rumsey

argues that individual liability applies broadly to “persons” when they in

any way “discriminate in employment.” See Iowa Code § 216.6(1)(a). As

discussed below, individual liability is neither quite as limited as the
defendants suggest nor as broad as Rumsey urges.
 37

We start with the language of the ICRA, which makes it a

discriminatory practice for

[any p]erson . . . to discharge any employee, or to otherwise
discriminate in employment against . . . any employee because
of the . . . disability of such applicant or employee, unless
based upon the nature of the occupation.

Id. The ICRA retaliation provision similarly makes it a discriminatory

practice for

[a]ny person to . . . retaliate against another person in any of
the rights protected against discrimination by this chapter
because such person has lawfully opposed any practice
forbidden under this chapter . . . .

Id. § 216.11(2). While the statutory language applies broadly to “any

person,” it also has limiting language. With respect to the failure-to-

accommodate claim, the individuals must have “otherwise discriminate[d]

in employment against . . . [the] employee,” which means they must have

engaged in discriminatory conduct that resulted in an adverse

employment action. Id. § 216.6(1)(a); see also Casey’s Gen. Stores, Inc.,

661 N.W.2d at 521. With respect to the retaliation claim, the individuals

must have “retaliate[d] . . . in any of the rights protected against

discrimination,” which means they must have engaged in retaliatory

conduct, in response to the plaintiff’s protected activity, that materially
and adversely injured or harmed the plaintiff. Haskenhoff, 897 N.W.2d at

582, 587–88 (quoting Iowa Code § 216.11(2) (2011)).

We reject the defendants’ attempt to limit individual liability to

supervisors. The “any person” language is not limited by title. While a

supervisor may have the ability to alter the terms of a subordinate’s

employment, that is neither sufficient nor necessary to create liability.
See, e.g., Hill, 737 F.3d at 1216 (holding supervisor who fired plaintiff was

not individually liable under Fair Labor Standards Act for plaintiff’s
 38

complaint about failure to pay for accrued compensation time; although

supervisor fired plaintiff, supervisor was not responsible for making

compensation decisions following termination). Rather, it is the

individual’s ability to effectuate the adverse employment action at issue

that can subject them to personal liability. See Neppl v. Wells Fargo Bank,

No. 4:19–CV–00387–JAJ, 2020 WL 3446280, at *3 (S.D. Iowa Mar. 27,

2020) (construing “Iowa law [as] stating that a person must be in a position

to effectuate an employment practice to be held liable” under Iowa Code

section 216.6(1)(a)). In Neppl v. Wells Fargo Bank, a former employee who
had previously been terminated while on maternity leave applied for an

open position with her former employer through a recruiter. Id. at *1.

When she was passed over for the position, she sued both the former

employer and her former supervisor for violating the ICRA, alleging they

retaliated against her for previously complaining about pregnancy and sex

discrimination—the employer by failing to rehire her and the former

supervisor by giving her a negative reference. Id. The district court

granted the supervisor’s motion to dismiss, concluding the plaintiff failed

to allege the former supervisor “was in a position to control Wells Fargo’s

employment decision.” Id. at *3–4. “Rather, a third party asked for her

opinion, [the former supervisor] gave it, and the third party made the

hiring decision.” Id. at 3. Absent an allegation that the former supervisor

had an ability to effectuate the adverse employment action, in that case

the hiring decision, she could not be held individually liable. See id.

This focus on the ability to effectuate the particular employment

decision at issue is supported by Sahai v. Davies, involving a physician

who performed a preemployment physical and recommended the employer
not hire the pregnant applicant for a factory job. 557 N.W.2d 898, 900

(Iowa 1997) (en banc). We held that the physician’s recommendation did
 39

not give rise to a claim of discriminatory conduct against him or his clinic

under the “any person” language of section 216.6(1)(a). Id. at 901. Though

the recommendation may have caused the prospective employer’s decision

not to hire the plaintiff, in the sense that the recommendation contributed

to the decision, it was insufficient to hold the physician liable where the

physician served only an advisory role. See id. The physician was not

responsible for the hiring decision but was only asked to provide his

independent medical judgment to assist the employer in making the hiring

decision. See id. The employer was still responsible for the hiring decision.
See id.

At the same time, we do not construe “any person” so strictly that it

is limited to only those with final decision-making authority, as the

defendants argue. The cases the defendants rely on are not as narrow as

the defendants suggest. In Nelson v. J.C. Penney Co., the district court

granted summary judgment on a claim against the employer’s general

counsel where the evidence established only that the general counsel was

present during the meeting when the decision was made to terminate the

plaintiff and advised the decision-maker about potential legal problems

from eliminating the plaintiff’s position, but there was no evidence the

general counsel “controlled the company’s decision.” Nelson, 140 F. Supp.

2d at 1010–11. That’s not to say the individual had to have total control.

It was the general counsel’s “ ‘advisory’ role, without more,” that precluded

individual liability. Id. at 1010 (quoting Sahai, 557 N.W.2d at 901).

To be liable, the individual must also be personally involved in

conduct that alters the terms or conditions of the employee’s employment.

See, e.g., Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1079 (8th Cir.
2006) (assuming without deciding that ICRA could impose liability on

nonsupervisory coworkers but affirming summary judgment where
 40

plaintiff failed to show coworker’s conduct altered terms of plaintiff’s

employment). This approach is consistent with application of similar

retaliation provisions in other states. See, e.g., Lewis v. Roosevelt Island

Operating Corp., 246 F. Supp. 3d 979, 984–85, 989, 992 (S.D.N.Y. 2017)

(holding individual liability for retaliation under New York Executive Law

section 296(6) may be imposed to the extent the individual was personally

involved in prohibited conduct and allowing claim by general counsel of

company against president of company who fired him after he complained

to board of directors about president’s racially discriminatory conduct but
dismissing claims against coworkers absent allegations of coworkers’

involvement in termination); Martin v. Irwin Indus. Tool Co., 862 F. Supp.

2d 37, 38 (D. Mass. 2012) (rejecting coworker’s assertion that retaliation

provision in Massachusetts General Law chapter 151B, section 4(4) is

limited to persons who exercise similar degrees of authority as employers

as contrary to plain language of provision, making it unlawful for “any

person . . . to discharge, expel or otherwise discriminate against any

person because [she] has opposed any practices forbidden under this

chapter” (alteration in original) (quoting Mass. Gen. Laws ch. 151B,

§ 4(4))); EEOC v. Fred Fuller Oil Co., 134 A.3d 17, 18, 22 (N.H. 2016)

(answering certified question as to whether employee can be individually

liable under New Hampshire civil rights act and holding “any person who

retaliates against another person in the workplace because he or she has

taken any of the specified protected actions is liable, under [Revised

Statutes Annotated of the State of New Hampshire section] 354–A:19, for

an unlawful discriminatory practice”). The focus is not on the individual’s

title or generalized authority over employment decisions but on the
individual’s personal involvement and ability to bring about the challenged

discriminatory action.
 41

We conclude that an individual who is personally involved in, and

has the ability to effectuate, an adverse employment action may be subject

to individual liability for discrimination under section 216.6 or retaliation

under section 216.11(2), assuming the other elements of each claim are

satisfied with respect to the individual defendant. Whether an individual

has the requisite involvement and ability to effectuate the challenged

adverse action will depend on the facts of the particular case.

We reject Mallaney’s and Coppock’s argument that they are entitled

to judgment as a matter of law on the basis that neither had final decision-
making authority to terminate Rumsey. That said, we express no

judgment on the viability of the claims remaining in this case related to

the request for an interpreter against either Mallaney or Coppock. On

remand, the trial court should have the opportunity to apply the standard

set in this case in the first instance.

Whether Mallaney or Coppock are individually liable must be based

on findings by a jury that each of them was sufficiently involved in, and

had the ability to effectuate, the challenged adverse action. If the

individual defendants remain in the case for trial, then they are entitled to

appropriate jury instructions and separate lines on the verdict form.5

5To that end, we acknowledge Judge Bennett’s warning that the litigation strategy
of naming individual defendants alongside a corporate employer is a risky one. See
Blazek v. U.S. Cellular Corp., 937 F. Supp. 2d 1003, 1027 n.9 (N.D. Iowa 2011) (“I question
the wisdom of plaintiffs routinely naming individual defendants in employment
discrimination cases, even if they can allege a plausible factual basis for doing so. . . .
When the day of reckoning approaches, the vast majority of plaintiffs’ lawyers recognize
the substantial risk that even if they win, juries will find against the individual defendants
and either exculpate the alleged corporate wrong-doer or allocate most if not all of the
damages to the individuals who are often judgement proof.”). This may explain the dearth
of cases holding an individual liable under chapter 216.
 42

IV. Conclusion.

The defendants are entitled to judgment as a matter of law on each

of Rumsey’s disability discrimination claims except Rumsey’s claims for

failure to accommodate and retaliation premised on his request for a sign

language interpreter. The district court’s denial of the defendants’ motion

for directed verdict is reversed as to each of Rumsey’s other claims, and

the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.