Tina Haskenhoff v. Homeland Energy Solutions, LLC

IN THE SUPREME COURT OF IOWA

No. 15–0574

Filed June 23, 2017

TINA HASKENHOFF,

Appellee,

vs.

HOMELAND ENERGY SOLUTIONS, LLC,

Appellant.

Appeal from the Iowa District Court for Chickasaw County, John J.

Bauercamper, Judge.

Employer appeals judgment on jury verdict for plaintiff on claims

for sexual harassment and retaliation. DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED FOR NEW TRIAL.

Kevin J. Visser and Lisa A. Stephenson of Simmons Perrine Moyer

Bergman PLC, Cedar Rapids, for appellant.

Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,

Des Moines, and Brooke Timmer and Paige Fiedler of Fiedler & Timmer,

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

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WATERMAN, Justice.

In this appeal, we must decide whether the district court correctly

denied an employer’s motion for new trial following a $1.4 million jury

verdict for the plaintiff on claims under the Iowa Civil Rights Act (ICRA)

for employment discrimination based on sexual harassment by a direct

supervisor and coemployees. The employer argues the district court

erred by submitting a direct negligence claim instead of vicarious liability

for supervisor harassment and misinstructed the jury on the elements of

proof, the causation standard for retaliation, the definition of adverse

employment action, and constructive discharge. The employer also

argues a new trial is required for attorney misconduct, errors in allowing

expert testimony on legal standards, and excessive damages, which

included $1 million for future emotional distress. Finally, the employer

argues the district court erred by awarding excessive attorney fees of

$846,364, the full amount claimed.

For the reasons explained below, we hold that workers may bring a

direct-liability negligence claim under the ICRA against the employer for

supervisor harassment, but the plaintiff must prove the employer knew

or should have known of the harassment and failed to take prompt and

appropriate remedial action to end it. We conclude that prejudicial

errors in four jury instructions require a new trial. We find no abuse of

discretion in the admission of the expert testimony. We need not decide

the remaining issues raised in the appeal.

I. Background Facts and Proceedings.

The jury could find the following facts based on the record

developed at trial. Homeland Energy Solutions, LLC (HES) operated an

ethanol plant with forty-five employees in Lawler, Iowa. On February 16,

2009, HES hired Tina Haskenhoff as a lab manager at the plant. That

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day, she was provided with a copy of the HES employee handbook, which

included its policy on sexual harassment. The policy stated sexual

harassment was prohibited and provided that “[a]n employee who

believes he or she has been subject to harassment prohibited by this

policy should report the incident immediately to their supervisor or a

member of the Management Team.” The policy stated any complaint of

sexual harassment would be investigated and any employee may bring a

complaint “without fear of reprisal.”

Haskenhoff was repeatedly harassed by her immediate supervisor,

Kevin Howes, HES’s operations manager. Howes repeatedly made

inappropriate comments in Haskenhoff’s presence. For example, Howes

talked about Haskenhoff’s breasts on at least three occasions, referring

to them as “them puppies” or “the twins.” Howes discussed Haskenhoff’s

body and attire with other employees and speculated out loud about

what it would be like to have sex with her. He insinuated to other male

employees that they could get Tina into bed. He commented on the

attractiveness or unattractiveness of female job applicants and

employees. He spoke at work about strippers. On multiple occasions, he

used objects or engaged in body motions in front of Haskenhoff to

simulate sexual behavior.

Haskenhoff’s coemployees also engaged in inappropriate conduct

in her presence. One displayed a screen saver on his computer of two

young girls touching tongues. Another photographed Haskenhoff’s

cleavage at a company outing and showed that photo to others.

Haskenhoff received an unwanted pornographic video from yet another

employee. The atmosphere Haskenhoff experienced at the HES plant

was unseemly and unprofessional.

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In November 2010, Haskenhoff told Howes she needed to leave

work early for a mammogram. She remembered Howes responding,

“[W]ell, you know, if you sat out in the parking lot you could probably

make some money.” She interpreted this to mean, “[I]f I sat in my car

and put a sign up guys would pay to grope me.” Howes’s recollection

differed; he recalled he told Haskenhoff she “could go around the corner

and use the copying machine and save herself some money.” He stated

that he meant Haskenhoff could “[u]se the copying machine, make a

photocopy [of her breast] versus going to the doctor.” Howes

acknowledged that his comment was inappropriate. Haskenhoff reported

the incident to the plant manager, Chad Kuhlers. Kuhlers forwarded

Haskenhoff’s report to the head of human resources, Sarah Frein. The

next day, Howes came to Haskenhoff’s office and spoke with her. He

apologized for his comment and expressed concern that Kuhlers wanted

him fired because of it. Haskenhoff said Howes made her feel “very

intimidated.” Shortly after her interaction with Howes, Walter Wendland,

the chief executive officer (CEO) of HES, asked Haskenhoff to come to his

office. She recalled at this meeting,

[Wendland] said—he was kind of, like, well, what’s going on

here, and he said you know Chad [Kuhlers] really wants me

to fire Kevin over this, and I said I never asked Chad to fire

him. And then Walt went on to say, well, come [on]. I

thought we were like a family. You don’t want to do this to

your family.

On December 7, Frein called Haskenhoff into her office to discuss her

complaint. Jeff Grober, the chief financial officer (CFO), was also present

in Frein’s office. At that meeting, Frein’s notes indicate that she had

planned “further discussion” about the complaint, but Haskenhoff stated

she did not want the investigation to go further because she did not want

Howes to be fired. Haskenhoff later testified about that meeting:

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Q. And what happened in that meeting? A. They

asked me about it. She said that Chad had notified her of

something Kevin had said to me that I reported as making

me uncomfortable, and I said he did. And I think I broke

down at that point, and I said I don’t want him to get fired

over this, you know. I said to her I’m sure now that he

knows, now that it has been pointed out to him, surely he

will stop. Anybody would stop.

Q. Is that what you believed would happen? A. Yes.

Q. Did you tell ’em you wanted it dropped? A. I said

if it were going to come to the point of Kevin getting fired, I

didn’t want to go—I didn’t want to officially go further at all

because I did not want him fired over that.

Q. Did you want them to do something about it?

A. Yes.

At Haskenhoff’s request, Frein took no further disciplinary action against

Howes at that time.

Wendlend later removed Kuhlers as plant manager and promoted

Howes to that position. For the next nine months, Haskenhoff made no

complaints to management about Howes. Her performance review in

January 2011 noted that she met or exceeded requirements in all areas.

However, the review also noted that Haskenhoff had areas to work on

and referenced an email dispute in which Haskenhoff had become

argumentative with a subordinate over lab procedures. In May, she

began seeking a position at John Deere.

On August 8, Haskenhoff walked by Howes’s office and overheard

him talking on his cell phone. Haskenhoff recently had told Howes she

intended to marry her long-time boyfriend. Haskenhoff overheard Howes

say, “Yep, she’s getting married. And for a good reason (pause) for

money.” This comment upset Haskenhoff. She walked into the control

room and told another employee, “Okay. Kevin is a [f&#%!@”g] asshole. I

am leaving. I will be back tomorrow.” Haskenhoff left work at 11:15 that

morning.

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Haskenhoff sent an email to Howes expressing her disgust at his

comment. Howes replied that he had not meant to offend her and asked

her to meet the next day in his office to discuss the issue. Later that

night, Howes sent an email to the CEO, Wendland; the CFO, then David

Finke; and the commodities manager, Steve Wubbena. In the email,

Howes said he wanted to discipline Haskenhoff for calling him expletives

in front of subordinate employees, for leaving the lab a mess, and for

leaving work without permission for the day. He pointed out Haskenhoff

had been the only lab person scheduled, lab samples had not been

completed, they were in the middle of a lab trial, and she “blew off” a

conference call by leaving. Howes also expressed frustration at

Haskenhoff’s attitude, her frequent smoke breaks, and her failure to

arrange coverage for her shifts on her days off. Finke responded, “We

claim that she does a lot of things poorly, do we have any of this

documented and on file?”

The next day, Haskenhoff met with Howes and Wubbena in

Howes’s office. They discussed the conduct from the day before, and

Howes apologized. Howes also used the term “insubordination” to refer

to Haskenhoff’s reaction to his comment. Haskenhoff replied using

terms such as “sexual harassment” and “hostile work environment” to

refer to Howes’s conduct. She then told Howes about other conduct in

the office, including about a coemployee having an inappropriate screen

saver and inappropriate nicknames being used in the office. Howes

responded after their meeting by directing the employees to cease using

the nicknames and to remove the screen saver.

The following week, Frein emailed Haskenhoff asking for “facts,

examples, and concerns [of inappropriate conduct] in writing so we can

get them addressed appropriately.” Haskenhoff responded by email to

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Frein the same day, listing multiple incidents of inappropriate conduct

and stating the list was long “but not all encompassing.” Haskenhoff

said the only reason she brought the issues up was that Howes had

threatened to write her up for insubordination. Frein immediately

forwarded this email to Finke, who responded, “I don’t think we can

discount anything that is mentioned below. Some of it may be

embellished a bit, but we still cannot just take it with a grain of salt.”

Finke stated that the first step was to look at the employee handbook,

the second step was a plant-wide training for sexual harassment, and

the third step was devising a plan to address the issue with Howes.

The next day, Howes prepared a written warning for Haskenhoff’s

conduct leaving work early. He also provided Frein with a statement of

what occurred during the August 9 meeting. Wubbena forwarded a

statement to Frein as well. A day later, Finke emailed Frein recounting

that he told Howes he needed to be “OVERLY” professional in “ALL” of his

work-related endeavors moving forward. Finke’s email also told Frein,

“In the meantime, I want you to be thinking about forming a game plan

for investigation [of] Tina’s claims.” Frein enlisted the help of outside

counsel, James Gilliam, that day. Frein asked Gilliam questions about

HES’s next steps, including whether Haskenhoff could be disciplined for

leaving work early without permission and for “plotting” against Howes.

HES investigated Haskenhoff’s complaint by interviewing

employees, including Haskenhoff and Howes. During Haskenhoff’s

interview on August 23, Wendlend and Frein were present and reviewed

Haskenhoff’s list of incidents. As to several incidents, Wendlend

commented to Haskenhoff that the conduct did not violate the company’s

policy and crossed them off the list in her presence.

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While the investigation was ongoing, Howes began drafting staff-

counseling forms, or write-ups, for what he perceived as Haskenhoff’s

insubordination leaving the plant early on August 8. Howes indicated he

wanted to terminate Haskenhoff and contacted other employees to gather

more evidence of her insubordination. Howes also repeatedly reminded

other employees to keep work professional and informed them of

upcoming mandatory harassment training. Gilliam and Frein

recommended that Haskenhoff not be disciplined for her conduct

because “the timing was inappropriate.” Finke told Howes by email that

he did not feel comfortable terminating Haskenhoff, stating,

I honestly feel that Walt and I are getting to the bottom of a

very serious situation and that we are doing it in the proper

manner. For me, the end goal is to make an informed proper

conclusion per Homeland’s policies and under the guidance

of qualified legal counsel.

Nevertheless, Howes drafted two final staff-counseling forms regarding

Haskenhoff, one entitled “#3” and the other “#4.” He emailed these forms

to Wendland and Finke. Form #3 discussed the investigation and listed

the “numerous harassment/inappropriate behavior claims” as one of the

reasons for disciplining Haskenhoff. Form #4 did not mention the

investigation and focused on Haskenhoff’s conduct on August 8 leaving

work without permission. Howes said he liked #4 because “it does not

come across as being retaliatory in nature.” Both forms recommended

giving Haskenhoff a written warning and ninety-day performance

improvement plan.

On August 29, Wendland and Finke presented Howes with a

written staff-counseling form, which determined that Howes had “made

unprofessional and unacceptable comments in the workplace.” It stated

that HES expected Howes’s conduct to improve and that if it did not, he

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would be subject to disciplinary action, including possible discharge.

Two days later, Wendlend and Finke met with Haskenhoff to discuss the

results of the investigation. They assured her that she would not be

retaliated against and directed her to report any perceived retaliation to

Finke or Wendland. Then, while Wendlend and Finke were still present,

Howes entered the room and presented Haskenhoff with a draft

performance improvement plan addressing her conduct on August 8.

Haskenhoff disagreed with many allegations in the plan. The men

assured her the plan would be redrafted to reflect her concerns. The

next day, Haskenhoff reported to HES for work. At around 11 a.m., she

entered Finke’s office and resigned, calling the previous day’s events

“bullshit.” 1 Six weeks later, Haskenhoff began working at John Deere.

Haskenhoff filed an administrative complaint with the ICRA eight

months later. After receiving an administrative release, Haskenhoff filed

a civil action in Chickasaw County District Court, alleging sexual

harassment and retaliation under the ICRA. The jury trial commenced

on October 1, 2014, and spanned three weeks.

HES filed multiple motions in limine, several of which were granted

by the district court. An order in limine prohibited Haskenhoff’s counsel

from making any reference to “rape,” “sexual assault,” or similarly

inflammatory terms and expressly prohibited making any analogy

between rape and the harassment complaint. Despite that ruling,

Haskenhoff’s counsel, during her examination of HES’s CEO at the jury

trial, asked this question:

1Haskenhoff posted on social media two days later to a friend, “[J]ust wanted to

let you know that [I] quit Homeland yesterday without giving any notice, had enough of

Kevin’s bullshit vulgarity and juvenile behavior and favoritism . . . followed your lead

LOL[.]”

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Q. I mean, don’t you think it would be analogous, for

instance, if someone had accused someone of rape and then

the person they accused of rape was able to walk in and say

that’s defamation for saying I’m a rapist?

MR. VISSER: Objection; this is argument, it’s

improper, and violates the terms of pretrial orders.

THE COURT: Sustained as to argumentative.

Another order in limine forbade Haskenhoff’s counsel from offering

testimony about Howes’s character or referring to him as “juvenile,

immature, chauvinistic, vindictive, holding a grudge, or capable of

retaliation,” as such evidence was not probative of truthfulness. Counsel

for Haskenhoff nevertheless asked the following questions in front of the

jury:

Q. [To Matthew Dutka, employee of HES] And based

on knowing and observing [Howes], is he the kind of person

that would be likely to use people to get what he wants?

....

Q. [To Wade Heideman, employee of HES] Based on

your observations about Kevin, would he be the kind of guy

who would hold a grudge?

....

Q. [To Sherri Hansen, employee of HES] From your

time working with Mr. Howes, do you think he would have

done everything in his power to get rid of Tina?

Counsel for HES objected over 574 times during the trial, according to

Haskenhoff. The court sustained 353 defense objections, or sixty-one

percent. By contrast, counsel for Haskenhoff objected fifty-nine times,

thirty of which were sustained (fifty-one percent).

The district court denied HES’s motion in limine to exclude the

testimony of expert witness Dr. Louise Fitzgerald, professor emeritus of

the University of Illinois at Urbana-Champaign, who taught Psychology

and Gender and Women’s Studies. HES argued her testimony included

inadmissible legal conclusions. Dr. Fitzgerald testified over defense

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objections about the standard of care in the human resources field for

policies and procedures regarding sexual harassment and HES’s alleged

failure to meet that standard. She also testified about victims’ typical

reactions to sexual harassment and stated Haskenhoff displayed those

reactions. HES argues the jury instructions were shaped to reflect

Dr. Fitzgerald’s testimony. At the close of evidence, the parties made a

record on jury instructions.

A. Direct Negligence Versus Vicarious Liability for Supervisor

Harassment. HES requested an instruction on sexual harassment that

applied different standards of liability depending on the harasser’s

position within the company. For harassment by a coworker, HES’s

proposed instruction stated it would be liable if it “knew or should have

known of the abusive or hostile conduct and failed to take prompt and

corrective action to end the harassment.” If the harasser was a

supervisor, HES’s proposed instruction did not require the plaintiff to

prove HES knew or should have known of the harassment, but allowed

HES to prove, as an affirmative defense, that it “exercised reasonable

care to prevent and correct promptly any sexually harassing behavior”

and that Haskenhoff “unreasonably failed to take advantage of any

preventative or corrective opportunities provided by Homeland Energy

Solutions or to avoid harm otherwise.” This is commonly known as the

Faragher–Ellerth defense to employer liability. See Faragher v. City of

Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998); Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998).

Haskenhoff argued for a single marshaling instruction on a direct

negligence theory that encompassed harassment by a supervisor or

coworker. The district court agreed and gave an instruction nearly

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identical to Haskenhoff’s proposed instruction. The court’s marshaling

instruction stated,

INSTRUCTION NO. 14

COUNT I – SEXUAL HARASSMENT CLAIM

In order to recover damages on her claim of sexual

harassment, the plaintiff, Tina Haskenhoff, must prove all of

the following elements of her claim:

1. The plaintiff, Tina Haskenhoff, was subjected to

offensive conduct by employees, agents, or officers of

Homeland Energy Solutions, L.L.C. while employed at its

ethanol plant.

2. Such conduct was unwelcome.

3. Tina Haskenhoff’s sex played a part in such

conduct.

4. This conduct was sufficiently severe or pervasive

that a reasonable person in Tina Haskenhoff’s position

would find her work environment was hostile or offensive.

5. At the time this conduct occurred and as a result of

this conduct, Tina Haskenhoff believed that the work

environment was hostile or abusive.

6. Homeland Energy Solutions, L.L.C., knew or should

have known of the occurrence of one or more sexually

harassing incidents.

7. Homeland Energy Solutions, L.L.C. acted

negligently in creating or continuing a hostile work

environment.

If you find that the plaintiff, Tina Haskenhoff, has

failed to prove any of these propositions, the plaintiff is not

entitled to damages on her claim of sexual harassment. If

the plaintiff has proved all of these propositions, the plaintiff

is entitled to damages in some amount.

HES objected to this marshaling instruction, citing Farmland

Foods, Inc. v. Dubuque Human Rights Commission, on liability for sexual

harassment and the applicability of the Faragher–Ellerth defense. 672

N.W.2d 733, 744 (Iowa 2003). HES also objected that the negligence

standard had been incorrectly defined, stating, “Again, to the extent that

there is co-worker harassment, the standard—the element is knew or

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should have known and failed to take appropriate and prompt remedial

action”—an element of proof was missing from the court’s instruction.

B. Retaliation Instruction—Causation. HES objected to the

court’s marshaling instruction on Count II, retaliation. HES requested

an instruction that required Haskenhoff to prove the protected activity

was a “significant factor” motivating the adverse employment action. In

contrast, Haskenhoff’s proposed instruction, which the district court in

large part adopted, provided that the protected activity need only have

“played a part” in defendant’s decision to take the adverse action. The

court’s marshaling instruction stated,

INSTRUCTION NO. 26

COUNT II – RETALIATION CLAIM

In order to recover damages on her claim of retaliation,

the plaintiff, Tina Haskenhoff, must prove all of the following

elements of her claim:

1. The plaintiff, Tina Haskenhoff, engaged in protected

activity by complaining about sexual harassment.

2. The defendant, Homeland Energy Solutions, L.L.C.,

took adverse action against Tina Haskenhoff.

3. The protected activity played a part in Homeland

Energy Solutions, L.L.C’s decision to take the adverse action.

Instruction No. 28 elaborated,

INSTRUCTION NO. 28

FACTOR – DEFINED

The plaintiff’s harassment complaints played a part in

her treatment if those complaints were a factor in the

defendant’s employment actions toward her. However, her

harassment complaints need not have been the only reason

for the defendant’s actions.

HES objected to these instructions, stating that the elements of a

retaliation claim, as set forth in our decisions, “all provide that . . .

causal connection is satisfied by a showing that the protected activity

was a significant factor motivating the adverse employment action.” HES

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cited City of Hampton v. Iowa Civil Rights Commission, 554 N.W.2d 532,

535 (Iowa 1995), and Hulme v. Barrett, 480 N.W.2d 40, 42 (Iowa 1992).

C. Adverse Action. HES also objected to the court’s instruction

defining “adverse employment action.” HES requested an instruction

that defined an adverse employment action as

an action that detrimentally affects the terms, conditions, or

privileges of employment. Changes in duties or working

conditions that cause no materially significant disadvantage

to the employee are not adverse employment actions. It

includes, but is not limited to, employment actions such as

termination of an employee, failure to promote, or any action

that would discourage a reasonable employee from making a

complaint of harassment. Giving an employee a performance

improvement plan or negative employment review is not

“adverse employment action” unless they are later used as a

basis to alter the employee’s terms or conditions of

employment in a detrimental way. Both the action and its

context must be examined.

The district court declined to give HES’s proposed instruction and

instead gave Haskenhoff’s instruction, which listed more activities as

examples of adverse action:

INSTRUCTION NO. 30

ADVERSE ACTION – DEFINED

“Adverse action” means any action which has material

consequences to an employee. It is anything that might

dissuade a reasonable person from making or supporting an

allegation of discrimination or harassment.

It includes but is not limited to, such employment

actions as constructive discharge, reprimands or threats of

reprimands, a change in opportunities, false accusations or

complaints, being investigated, being placed on a

performance improvement plan, being placed on probation,

or other actions which adversely affect or undermine the

position of the employee. It also includes an employer

seeking out negative feedback on an employee, or condoning

or encouraging other employees to complain about her. You

should judge whether an action is sufficiently adverse from

the point of view of a reasonable person in the plaintiff’s

position.

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HES objected, stating the second paragraph was “misleading and an

incomplete statement of the law” because it included reprimands and

other matters never found to constitute adverse action. The court

overruled the objection.

D. Constructive Discharge. HES objected to the court’s

instruction on constructive discharge, which was adopted verbatim from

Haskenhoff’s proposed instruction and stated,

INSTRUCTION NO. 33

CONSTRUCTIVE DISCHARGE – EXPLAINED

An employee is constructively discharged if the

employer deliberately makes her working conditions

intolerable so that the employee reasonably feels forced to

quit. The work environment need not literally be unbearable

to be intolerable under the law. The employer need not

really want the employee to quit. It is sufficient that the

employee’s resignation was a reasonably foreseeable

consequence of the working conditions created or permitted

by the employer.

The employee must show that she was subjected to

sexual harassment or retaliation [that] made her believe

there was no chance for fair treatment at Homeland.

An employee does not need to stay as an employee if

she reasonably believes there is no possibility the employer

will treat her fairly. It is enough if the employee has no

recourse within the employer’s organization or reasonably

believes there is no chance for fair treatment. The

intolerable working conditions may be created by either the

action or inaction of the employer.

HES objected that the instruction was an “incomplete and misleading

statement of the law” because it injected a subjective standard. HES also

specifically objected to

the court’s failure to include language as suggested by the

defendant in its constructive discharge claim, including but

not limited to a statement that “the employee has an

obligation to be reasonable, not assume the worst and not

jump to conclusions; conditions will not be considered

intolerable unless the employer has been given reasonable

chance to resolve the problem.”

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E. The Court’s Ruling. Following argument on each of the jury

instructions, the court provided, “Court will overrule all of the objections

and exceptions to the instructions. Court believes they’re appropriate

based on the factual record and the law as the court views it.” The case

proceeded to verdict.

On October 23, the jury returned a verdict for Haskenhoff on both

counts and awarded damages in the amount of $1,400,000—$100,000 in

backpay, $300,000 in past emotional distress, and $1,000,000 in future

emotional distress.

HES moved for a new trial on grounds of (1) the instructional

errors set forth above, (2) erroneous evidentiary rulings allowing

Dr. Fitzgerald to testify as to legal conclusions, (3) misconduct by

Haskenhoff’s counsel, and (4) excessive damages. Haskenhoff filed a

motion requesting attorney fees and expenses of $846,364 and equitable

relief of frontpay of $240,000.

The district court denied HES’s motion for new trial. Specifically,

the court found, “Jury instructions were thoroughly briefed by counsel

and discussed at length with the court both on and off the record.” The

court also noted that nearly all of HES’s asserted evidentiary errors were

based on issues already ruled upon by the court during HES’s motion for

summary judgment and motions in limine. The court found the

attorneys’ conduct to be merely a product of zealous representation and

damages were not excessive. The court awarded frontpay and attorney

fees in the full amount requested and entered judgment for Haskenhoff

for a total of $2,486,364.

HES filed a timely notice of appeal based on the issues raised in its

motion for new trial and excessive attorney fees. We retained the appeal.

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II. Standard of Review.

“We review alleged errors in jury instructions for correction of

errors at law.” DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa

2009) (quoting Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa

2006)). Similarly, we review the district court’s refusal to give a

requested jury instruction for correction of errors at law. Alcala v.

Marriott Int’l, Inc., 880 N.W.2d 699, 701 (Iowa 2016). “It is error for a

court to refuse to give a requested instruction where it ‘correctly states

the law, has application to the case, and is not stated elsewhere in the

instructions.’ ” DeBoom, 772 N.W.2d at 5 (quoting Vaughan v. Must, Inc.,

542 N.W.2d 533, 539 (Iowa 1996)). Instructional error “does not merit

reversal unless it results in prejudice.” Id. (quoting Wells v. Enter.

Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004)). Prejudicial error

results when instructions materially misstate the law or have misled the

jury. Id. Jury instructions must be considered “in their entirety” when

assessing prejudice. Id. (quoting Anderson v. Webster City Cmty. Sch.

Dist., 620 N.W.2d 263, 265 (Iowa 2000)). “We assume prejudice unless

the record affirmatively establishes that there was no prejudice.” Rivera

v. Woodward Res. Ctr., 865 N.W.2d 887, 903 (Iowa 2015).

“We review a trial court’s decision to admit or exclude expert

testimony for an abuse of discretion.” Ranes v. Adams Labs., Inc., 778

N.W.2d 677, 685 (Iowa 2010). We reverse district court rulings on the

admissibility of expert opinion testimony “only when the record shows

‘the court exercised [its] discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’ ” Id. (alteration in

original) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).

Grounds are untenable when they are unsupported by substantial

evidence or based on an erroneous application of the law. Id.

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III. Analysis.

The first question we must decide is whether Haskenhoff could

recover from HES on a direct negligence theory for harassment by her

supervisor, Howes. HES contends a supervisor-harassment action

requires a vicarious liability theory and an affirmative-defense

instruction, while only a coworker-harassment action can be brought

under a direct-liability negligence (direct negligence) theory. Haskenhoff

contends a plaintiff may sue the employer under a direct negligence

theory for both supervisor and coworker harassment. We hold employers

can be held liable for supervisor harassment under the ICRA on a direct

negligence theory. However, the plaintiff must prove the employer failed

to take prompt and appropriate remedial action to end the harassment, a

fighting factual issue at trial. Because the district court’s marshaling

instruction omitted that element, a new trial is required.

We next address the three remaining instructional errors in turn.

We conclude the jury was misinstructed on the causation element for

retaliation, on the definition of adverse employment action, and on

constructive discharge. These prejudicial instructional errors also

require a new trial. Finally, because the issue is likely to recur on

remand, we address the admissibility of Dr. Fitzgerald’s testimony and

conclude the district court did not abuse its discretion by allowing her

testimony.

A. Does the ICRA Allow a Plaintiff to Bring a Direct Negligence

Claim Against the Employer for Supervisor Harassment? The parties

agree that a plaintiff may sue an employer under a vicarious liability

theory for supervisor harassment and may bring a direct negligence

claim against the employer for coworker harassment. The fighting issue

is whether the direct negligence theory also may be used for supervisor

19

harassment. Because supervisors are employees and the caselaw has

not limited recovery to vicarious liability, we conclude a plaintiff can elect

to sue an employer for supervisor harassment under either theory.

We begin with the text of the statute. Iowa Code section 216.6(1)

(2011) forbids the creation of a hostile working environment, stating,

It shall be an unfair or discriminatory practice for any:

a. Person to refuse to hire, accept, register, classify, or

refer for employment, to discharge any employee, or to

otherwise discriminate in employment against any applicant

for employment or any employee because of the . . . sex . . .

of such applicant or employee, unless based upon the nature

of the occupation.

To establish a hostile-work-environment claim under the ICRA,

the plaintiff must show: (1) he or she belongs to a protected

group; (2) he or she was subjected to unwelcome

harassment; (3) the harassment was based on a protected

characteristic; and (4) the harassment affected a term,

condition, or privilege of employment.

Boyle, 710 N.W.2d at 746 (quoting Farmland Foods, 672 N.W.2d at 744).

Harassment affects a term, condition, or privilege of employment “[w]hen

the workplace is permeated with ‘discriminatory intimidation, ridicule,

and insult’ . . . ‘sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.’ ”

Farmland Foods, 672 N.W.2d at 743 (alterations in original) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)).

When harassment is perpetrated by a nonsupervisory employee, an

employer will be liable if the plaintiff proves the employer “knew or

should have known of the harassment and failed to take proper remedial

action.” Id. at 744 (quoting Stuart v. Gen. Motors Corp., 217 F.3d 621,

631 (8th Cir. 2000)). However, when harassment is perpetrated by a

supervisory employee, an employer may be subject to vicarious liability.

20

Id. The employer defending a vicarious liability claim may assert the

Faragher–Ellerth affirmative defense

by showing it: (1) “exercised reasonable care to prevent and

correct promptly any . . . harassing behavior,” and (2) “that

the plaintiff employee unreasonably failed to take advantage

of preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.”

Id. at 744 n.2 (quoting Faragher, 524 U.S. at 807, 118 S. Ct. at 2293).

HES argues the jury should have been instructed on vicarious

liability, including the Faragher–Ellerth defense, because vicarious

liability replaced the negligence standard for supervisor harassment.

Haskenhoff argues the vicarious liability standard did not replace, but

rather supplemented, the direct negligence standard. Because the ICRA

hostile-work-environment claim is modeled after its Title VII counterpart,

we consider federal law instructive. 2 Boyle, 710 N.W.2d at 749–50

(recognizing that Title VII hostile-work-environment claim has the same

elements as ICRA claim); see also DeBoom, 772 N.W.2d at 7 (“When

interpreting discrimination claims under Iowa Code chapter 216, we turn

2It has been suggested that we should not rely on federal law because Iowa civil

rights statutes were enacted before Title VII. The Iowa legislature, however, did not

expressly include a hostile-work-environment provision in the ICRA. See Iowa Code

§ 216.6(1). Rather, the claim has been developed through our caselaw, beginning in

1990, based expressly on Title VII precedent. We first recognized a hostile-work-

environment claim for sex discrimination in Lynch v. City of Des Moines, 454 N.W.2d

827, 833 (Iowa 1990), relying on Chauffeurs, Teamsters & Helpers, Local Union No. 238

v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986). Chauffeurs, in turn,

delineated the elements of a racial hostile-work-environment harassment claim, relying

on Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir. 1982), a Federal Title VII

case, for the appropriate framework under the ICRA. Chauffeurs, 394 N.W.2d at 378,

381 (holding union liable when members harassed African-American man with racial

epithets and threatening actions). In Meritor Savings Bank, FSB v. Vinson, the Supreme

Court also relied on Henson to adopt the framework for a Title VII hostile-work-

environment claim for sex discrimination. 477 U.S. 57, 66–67, S. Ct. 2399, 2405

(1986). Henson states that to hold an employer responsible for “creating or condoning

[a hostile] environment at the workplace,” the plaintiff must prove, among other things,

“the employer knew or should have known of the harassment in question and failed to

take prompt remedial action.” 682 F.2d at 901, 905.

21

to federal law, including Title VII of the United States Civil Rights Act

. . . .”). Accordingly, we will review the development of these liability

theories under federal caselaw and the interplay of those decisions with

our court’s precedents.

The United States Supreme Court first recognized hostile-work-

environment sexual harassment as actionable discrimination in Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 2399, 2405

(1986), notably a supervisor-harassment case. Although the Court

declined to adopt a definitive rule for sexual-harassment liability, it

expressly rejected the notion that “employers are always automatically

liable for sexual harassment by their supervisors.” Id. at 72, 106 S. Ct.

at 2408. Instead, the Court looked to “agency principles for guidance” in

setting liability standards. Id. at 72, 106 S. Ct. at 2408. A four-justice

concurrence noted the predominant standard at the time for coworker-

harassment liability: that an employer will be liable when it “knows or

should have known of the conduct, unless it can show that it took

immediate and appropriate corrective action.” Id. at 74, 106 S. Ct. at

2409 (Marshall, J., concurring) (quoting 29 C.F.R. § 1604.11(c), (d)

(1985)).

Four years later, in Lynch v. City of Des Moines, we held that

“maintenance of a sexually hostile work environment through sexual

harassment is a form of illegal sex discrimination under [the ICRA].” 454

N.W.2d 827, 833 (Iowa 1990). We determined the plaintiff was required

to prove “the employer knew or should have known of the harassment

and failed to take prompt and appropriate remedial action.” Id.

Although Lynch was a coworker-harassment case, subsequent decisions

recognized this standard applied to both supervisor and coworker

harassment under the ICRA. See Greenland v. Fairtron Corp., 500

22

N.W.2d 36, 38 (Iowa 1993) (citing same standard for supervisor

harassment); Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa

1990) (en banc) (applying same standard to supervisor harassment);

Edmunds v. Mercy Hosp., 503 N.W.2d 877, 879 (Iowa Ct. App. 1993)

(noting same standard for supervisor harassment).

In 1998, the United States Supreme Court recognized employer

vicarious liability for supervisor harassment. Ellerth, 524 U.S. at 759,

118 S. Ct. at 2267. The Court relied on the Restatement (Second) of

Agency, which states,

(2) A master is not subject to liability for the torts of his

servants acting outside the scope of their employment,

unless:

....

(b) the master was negligent or reckless, or

....

(d) the servant purported to act or speak on behalf of

the principal and there was reliance upon apparent

authority, or he was aided in accomplishing the tort by the

existence of the agency relation.

Id. at 758, 118 S. Ct. at 2267 (quoting Restatement (Second) of Agency

§ 219(2) (1957)). The Court reasoned harassment committed by a

supervisor was “aided by the agency relation” within the scope of section

(d) when a supervisor takes a tangible employment action against the

employee because “the injury could not have been inflicted absent the

agency relation. . . . A tangible employment decision requires an official

act of the enterprise, a company act.” Id. at 761–62, 763, 118 S. Ct. at

2269; see also Faragher, 524 U.S. at 802, 118 S. Ct. at 2290 (“[I]n

implementing Title VII it makes sense to hold an employer vicariously

liable for some tortious conduct of a supervisor made possible by abuse

of his supervisory authority, and that the aided-by-agency-relation

principle embodied in § 219(2)(d) of the Restatement provides an

23

appropriate starting point for determining liability . . . .”). In addition,

even when no tangible employment action results, the Court observed

that “a supervisor’s power and authority invests his or her harassing

conduct with a particular threatening character, and in this sense, a

supervisor is always aided by the agency relation.” Ellerth, 524 U.S. at

763, 118 S. Ct. at 2269. Thus, the Court held that the employer would

be vicariously liable unless it could show

(a) that [it] exercised reasonable care to prevent and correct

promptly any sexually harassing behavior, and (b) that the

plaintiff employee unreasonably failed to take advantage of

any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.

Id. at 765, 118 S. Ct. at 2270. The Court echoed this vicarious liability

standard for supervisor liability in Faragher, another supervisor-

harassment case decided on the same day. 524 U.S. at 807, 118 S. Ct.

at 2292–93.

Iowa adopted the vicarious liability standard of Ellerth and

Faragher in Farmland Foods, a hostile-work-environment claim under

the ICRA. 672 N.W.2d at 744. Since then, employees bringing

harassment claims under the ICRA have used the vicarious liability

standard to hold employers liable for supervisor harassment. See, e.g.,

Reed v. Cedar County, 474 F. Supp. 2d 1045, 1061–62 (N.D. Iowa 2007);

Krambeck v. Children & Families of Iowa, Inc., 451 F. Supp. 2d 1037,

1041 (S.D. Iowa 2006); Lopez v. Aramark Unif. & Career Apparel, Inc.,

426 F. Supp. 2d 914, 949 (N.D. Iowa 2006); Fisher v. Elec. Data Sys., 278

F. Supp. 2d 980, 986–87 (S.D. Iowa 2003).

Merely because vicarious liability is available in cases of supervisor

harassment does not mean the negligence standard in place before

Ellerth, Faragher, and Farmland Foods has been abrogated. To the

24

contrary, Ellerth expressly states that the direct negligence standard, set

forth in subsection (b) of the Restatement of Agency, remains an

alternative ground for establishing employer liability for supervisor

harassment:

Subsections (b) and (d) are possible grounds for

imposing employer liability on account of a supervisor’s acts

and must be considered. Under subsection (b), an employer

is liable when the tort is attributable to the employer’s own

negligence. Thus, although a supervisor’s sexual

harassment is outside the scope of employment because the

conduct was for personal motives, an employer can be liable,

nonetheless, where its own negligence is a cause of the

harassment. An employer is negligent with respect to sexual

harassment if it knew or should have known about the

conduct and failed to stop it. Negligence sets a minimum

standard for employer liability under Title VII; but Ellerth

seeks to invoke the more stringent standard of vicarious

liability.

Ellerth, 524 U.S. at 758–59, 118 S. Ct. at 2267 (emphasis added)

(citation omitted). We conclude the vicarious liability theory was

intended to supplement, not replace, the direct negligence theory for

supervisor harassment.

The Supreme Court’s decision in Vance v. Ball State University, 570

U.S. ___, 133 S. Ct. 2434 (2013), is not to the contrary. At issue in

Vance was whether a certain employee was merely a coworker, for which

the employer could only be held liable under the negligence standard, or

a supervisor, for which the employer could also face vicarious liability.

See id. at ___, 133 S. Ct. at 2443. The Court stated that “Ellerth and

Faragher identified two situations in which the aided-in-the-

accomplishment rule warrants employer liability even in the absence of

negligence.” Id. at ___, 133 S. Ct. at 2441 (emphasis added). That

sentence simply confirms a nonnegligent employer can be vicariously

liable for its supervisor’s harassment. See id. at ___, 133 S. Ct. at 2439

25

(“[A]n employer’s liability for such harassment may depend on the status

of the harasser.” (Emphasis added.)). We read nothing in Vance that

precludes allowing a direct negligence theory. While Vance notes that

“[i]n cases in which the harasser is a ‘supervisor’ . . . different rules

apply,” that simply reiterates that vicarious liability is imposed only for

supervisor harassment, not for harassment by a nonsupervisory

coemployee. Id. at ___, 133 S. Ct. at 2439.

Several federal circuit courts of appeals after Ellerth and Faragher

have held that suits for supervisor harassment can be brought under

either vicarious liability or direct negligence theories. In Sharp v. City of

Houston, the United States Court of Appeals for the Fifth Circuit

recognized that a claim for supervisor harassment could proceed on a

negligence “knew or should have known” theory because the negligence

standard for supervisor harassment was “not disturbed by Faragher or

[Ellerth].” 164 F.3d 923, 929 (5th Cir. 1999). The court noted that

although the negligence standard was typically applied to coworker

harassment, “[t]he concept of negligence thus imposes a ‘minimum

standard’ for employer liability—direct liability—under title VII, a

standard that is supplemented by the agency-based standards for

vicarious liability as articulated in Faragher and [Ellerth].” Id. (citation

omitted); see also Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d

642, 650–53 (10th Cir. 2013) (analyzing employer liability for supervisor

harassment under both negligence and vicarious liability standards);

Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 421 (11th Cir.

1999) (“[A]n employer can be held directly liable for a supervisor’s

harassment when the employer either intended, or negligently permitted,

the tortious conduct to occur.”); Wilson v. Tulsa Junior Coll., 164 F.3d

534, 540 n.4 (10th Cir. 1998) (recognizing the “continuing validity of

26

negligence as a separate basis for employer liability” in action in which

employee alleged supervisor harassment). HES cites no decision that

holds a plaintiff cannot bring a direct negligence claim against an

employer for supervisor harassment, and we have found none.

That employers are directly liable for their own negligence is not a

new proposition. The Restatement (Second) of Employment Law, section

4.02, at 134 (2015), entitled “Employer’s Direct Liability to Employees for

Its Own Conduct,” provides that “an employer is subject to liability in

tort to an employee for harm caused in the course of employment by the

tortious conduct of the employer or the controlling owner.” (Emphasis

added.) Similarly, the Restatement (Third) of Agency, section 7.03, at

151 (2006), provides that a principal is liable for its own negligence in

“selecting, supervising, or otherwise controlling the agent” in addition to

any vicarious liability that may be imposed via the agent’s actions.

We hold that plaintiffs under the ICRA may proceed against the

employer on either a direct negligence or vicarious liability theory for

supervisor harassment in a hostile-work-environment case. The

Faragher–Ellerth affirmative defense, with the burden of proof on the

employer, applies only to claims of vicarious liability. Ellerth, 524 U.S. at

764, 118 S. Ct. at 2270 (adopting affirmative defense “in order to

accommodate the agency principle of vicarious liability for harm caused

by misuse of supervisory authority” (emphasis added)); accord Faragher,

524 U.S. at 807, 118 S. Ct. at 2292; see also Johnson v. Shinseki, 811

F. Supp. 2d 336, 348 n.2 (D.D.C. 2011) (holding because the court

applied the negligence standard, “the Faragher defense is inapplicable”);

Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) (stating

defense did not apply to negligence standard); Lintz v. Am. Gen. Fin., Inc.,

50 F. Supp. 2d 1074, 1081 (D. Kan. 1999) (rejecting Faragher–Ellerth

27

defense in direct negligence action). By contrast, on a direct negligence

claim, the plaintiff must prove “the employer . . . failed to take prompt

and appropriate remedial action.” Lynch, 454 N.W.2d at 833.

B. Whether the District Court Correctly Instructed the Jury

on the Direct Negligence Theory. We next address whether the jury

was correctly instructed on the direct negligence theory. The district

court essentially adopted Haskenhoff’s proposed marshaling instruction,

which omitted an element she was required to prove—that HES “failed to

take prompt and appropriate remedial action.” Id. HES objected to the

omission of that element, and we conclude the district court prejudicially

erred by overruling the objection and giving Instruction No. 14 without

that language. Whether HES in fact took “prompt and appropriate

action” was a fighting issue at trial and a jury question. Haskenhoff did

not establish as a matter of law that HES failed to take prompt and

appropriate action.

The standard requiring a plaintiff to prove the employer’s failure to

take prompt remedial action “places a reasonable duty on an employer

who is aware of discrimination in the workplace to take reasonable steps

to remedy it.” Vaughn, 459 N.W.2d at 634. Whether the employer met

this duty is a question of fact and turns on “the gravity of the harm, the

nature of the work environment, and the resources available to the

employer.” Id.

The first time Haskenhoff complained to management about

Howes’s harassment, senior management promptly met with her and

Howes. Howes was verbally confronted in a manner that led him and

others to believe he faced termination. Howes apologized to Haskenhoff,

and Haskenhoff, believing the harassment issue was resolved, asked that

no further action be taken at that time. See Nurse “BE” v. Columbia

28

Palms W. Hosp. Ltd. P’ship, 490 F.3d 1302, 1310 (11th Cir. 2007)

(holding that if employee “did not want [the harassing behavior] reported

or acted upon, then [the employer] would not have been placed on proper

notice of the harassment” (alterations in original) (quoting Olson v.

Lowe’s Home Ctrs., Inc., 130 F. App’x 380, 391 n.21 (11th Cir. 2005))).

Haskenhoff made no further complaints to management during the next

nine months. HES management could reasonably assume its prior

remedial efforts were adequate. See An v. Regents of Univ. of Cal., 94

F. App’x 667, 676 (10th Cir. 2004) (determining employer not liable when

initial complaint limited to one comment that made employee feel

uncomfortable, then employee made no further complaint and assured

management that things were “okay” until second complaint).

When Haskenhoff next complained of harassment in August of

2011, HES took immediate remedial action. A formal investigation was

launched with outside counsel. Witnesses were interviewed. HES

management admonished coemployees to conduct themselves

professionally and take down the offensive screen saver. Sexual

harassment training was scheduled. Howes was disciplined and

apologized. See Wilson, 164 F.3d at 540 (jury may consider availability

and effectiveness of employer’s complaint procedure). HES was entitled

to have the jury decide whether Haskenhoff proved that it had failed to

take prompt and appropriate action.

Haskenhoff argues Vance imposes liability when an employer is

negligent in allowing harassment to occur, regardless of notice or

subsequent corrective action. We disagree. Haskenhoff relies on this

sentence in Vance: “As an initial matter, an employer will always be liable

when its negligence leads to the creation or continuation of a hostile

29

work environment.” 570 U.S. at ___, 133 S. Ct. at 2452. 3 However, the

Vance Court, two paragraphs later, reiterates the relevance of the

3It has been suggested that Vance created two types of negligence liability,

negligence in failing to prevent the harassment and negligence in failing to remedy it.

But the standard for both negligent failure to prevent and negligent failure to remedy is

the same: an employer is only liable if he knows or should have known of the

harassment and failed to take prompt measures to rectify it. See, e.g., Ocheltree v.

Scollon Prods., Inc., 335 F.3d 325, 333–34 (4th Cir. 2003) (“[T]he employer may be liable

in negligence if it knew or should have known about the harassment and failed to take

effective action to stop it.” (Emphasis added.)); Sharp v. City of Houston, 164 F.3d 923,

929 (5th Cir. 1999) (“An employer may be liable for sexual harassment if it ‘knew or

should have known of the harassment in question and failed to take prompt remedial

action.’ ” (quoting Williamson v. City of Houston, 148 F.3d 462, 464 (5th Cir. 1998));

Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1037 (7th Cir. 1998)

(“[E]mployers are liable for a co-employee’s harassment only ‘when they have been

negligent either in discovering or remedying the harassment.’ An employer’s legal duty

in co-employee harassment cases will be discharged if it takes ‘reasonable steps to

discover and rectify acts of sexual harassment by its employees.’ ” (citation omitted)

(quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997))); Spicer v.

Commw. of Va., Dep’t of Corr., 66 F.3d 705, 710 (4th Cir. 1995) (“On the fourth element

for establishing employer liability, we have repeatedly held that an employer cannot be

held liable for isolated remarks of its employees unless the employer ‘knew or should

have known of the harassment, and took no effectual action to correct the situation.’ ”

(quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)); Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 677 (10th Cir. 1990) (stating it was an “essential element for employer

liability” that the plaintiff establish the employer “inadequately responded to incidents

of harassment of which it knew or should have known”); Paroline v. Unisys Corp., 879

F.2d 100, 106 (4th Cir. 1989) (“In a hostile environment claim such as we have here, an

employer is liable for one employee’s sexual harassment of another worker if the

employer had ‘actual or constructive knowledge of the existence of a sexually hostile

working environment and took no prompt and adequate remedial action.’ ” (quoting

Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (emphasis added))), vacated

in part on other grounds, 900 F.2d 27 (4th Cir. 1990).

The employer’s knowledge and response are key: if the employer did not have

notice of the harassment, either actual or constructive, the employer is not liable. If an

employer is negligent in failing to discover workplace harassment, the employee

proceeds under a should-have-known framework, but the employer’s responsive actions

are still relevant. See, e.g., Sharp, 164 F.3d at 930 (analyzing employer’s constructive

knowledge of conduct and concluding it could be liable because it should have known of

harassment and tolerated it); Adler, 144 F.3d at 673, 676–77; Paroline, 879 F.2d at 107

(stating that employee must prove the employer should have reasonably anticipated

harassment because of its pervasiveness and that the employer “failed to take action

reasonably calculated to prevent such harassment”). Here, however, it is undisputed

that HES had actual knowledge of the harassment—Haskenhoff complained twice.

Thus, the jury should have been instructed that HES was liable only if it failed to take

prompt responsive action.

30

employer’s remedial efforts under a negligence theory: “Evidence that an

employer did not monitor the workplace, failed to respond to complaints,

failed to provide a system for registering complaints, or effectively

discouraged complaints from being filed would be relevant.” Id. at ___,

133 S. Ct. at 2453. Removing the requirement for the plaintiff to prove

the employer neglected to take corrective action would impose strict or

automatic liability on an employer whenever supervisor harassment

occurred without a tangible adverse employment action, a position our

court has never adopted and the Supreme Court has expressly declined

to adopt. See Faragher, 524 U.S. at 804–05, 118 S. Ct. at 2291–92.

Haskenhoff cites cases that she contends establish that an employer can

be liable regardless of whether it took remedial action. Yet each of those

decisions indicates the employer’s remedial action or lack thereof is

relevant to whether it acted negligently. 4

It has been suggested that the jury need not be instructed

regarding the employer’s remedial efforts if management, negligently

unaware of harassment, took no action. That is not this case.

4See Rock v. Blaine, No. 8:14-CV-1421 MAD/CHF, 2015 WL 3795886, at *1, *5

(N.D.N.Y. June 17, 2015) (noting employer is liable when negligence “perpetuates” a

hostile environment, and despite plaintiff’s several complaints to supervisors, harasser’s

conduct “was not remedied”); Killis v. Cabela’s Retail II, Inc., No. 13 C 6532, 2015 WL

128098, at *13 (N.D. Ill. Jan. 8, 2015) (determining that under negligence theory for

supervisor liability, employer’s comprehensive and immediate response to plaintiff’s

complaint was a “fundamental obstacle” to her recovery (quoting Muhammad v.

Caterpillar, Inc., 767 F.3d 694, 698 (7th Cir. 2014)); Schmidlin v. Uncle Ed’s Oil Shoppes,

Inc., No. 2:13-CV-10552, 2014 WL 3809415, at *11 (E.D. Mich. Aug. 1, 2014) (“To

establish notice of and negligent failure to address harassment, an employee must show

that ‘the employer, through its agents or supervisory personnel, knew or should have

known of the charged sexual harassment and failed to implement prompt and

appropriate corrective action.’ ” (Emphasis added.) (quoting Kauffman v. Allied Signal,

Inc., 970 F.2d 178, 183 (6th Cir. 1992))); O’Connell v. Peppino’s Catering Co., LLC, No.

1:13-CV-384, 2014 WL 794657, at *8 (W.D. Mich. Feb. 27, 2014) (noting under state

standard employer could be liable “only if the employer had reasonable notice of the

harassment and failed to take appropriate corrective action” (quoting Elezovic v. Ford

Motor Co., 697 N.W.2d 851, 861 (Mich. 2005))); Ríos DaSilva v. One, Inc., 980

F. Supp. 2d 148, 163 n.1 (D.P.R. 2013) (stating Vance serves to remind practitioners

“the employer is always liable if he was negligent in not taking action” (emphasis added)).

31

Haskenhoff on two occasions complained to management about Howes’s

harassment. On both occasions, management took action to stop the

harassment. It was for the jury to determine, under proper instructions,

whether HES’s responses were adequate—that is, whether it “failed to

take prompt and appropriate remedial action.” Lynch, 454 N.W.2d at

833.

We decline to interpret the ICRA to impose employer liability for

supervisor harassment under a direct negligence theory despite the

employer’s prompt and appropriate action to end the harassment.

Notably, the Equal Employment Opportunity Commission (EEOC) in

interpreting Title VII does not go so far. See 29 C.F.R. § 1604.11(d)

(2016) (“[A]n employer is responsible for acts of sexual harassment in the

workplace where the employer (or its agents or supervisory employees)

knows or should have known of the conduct, unless it can show that it

took immediate and appropriate corrective action.” (Emphasis added.)).

Indeed, most federal circuit model jury marshaling instructions for

sexual harassment under Title VII require the plaintiff to prove the

defendant failed to take prompt and appropriate remedial action. 5 None

5See Pattern Jury Instruction for Cases of Emp’t Discrimination for the Dist. Cts.

of the U.S. Ct. of Appeals for the First Circuit 2.3 (2011) (requiring plaintiff to prove six

elements, including “Fifth, [defendant; management level employees of defendant] either

knew or should have known of the harassment; and Sixth, [defendant; management

level employees of defendant] failed to take prompt and appropriate remedial action”

(emphasis added) (footnote omitted)); Third Circuit Model Civil Jury Instruction 5.1.5

(2016) (“You must find for [defendant] if you find that [defendant] has proved both of the

following elements by a preponderance of the evidence: First, [Defendant] exercised

reasonable care to prevent harassment in the workplace on the basis of [protected

status], and also exercised reasonable care to promptly correct any harassing behavior

that does occur.” (Emphasis added.)); Fifth Circuit Pattern Civil Jury Instruction 11.4

(2014) (“Plaintiff [name] must prove that: a. the harassment was known by or

communicated to a person who had the authority to receive, address, or report the

complaint, . . . or the harassment was so open and obvious that Defendant [name]

should have known of it; and b. Defendant [name] failed to take prompt remedial action

designed to stop the harassment.” (Emphasis added.)); Fed. Civil Jury Instruction of the

32

of the federal circuits hold an employer liable merely for “negligently

creating or continuing a hostile work environment”—as the jury was

instructed in this case. Rather, a party must not only show the employer

knew of the harassment, but also that it unreasonably failed to take

remedial action. See, e.g., Swinton, 270 F.3d at 803 (“[I]t was Swinton’s

burden . . . to prove that management knew or should have known of the

harassment and ‘failed to take reasonably prompt, corrective action.’ ”).

Under the instruction as given, the jury could have found HES liable

even if the jury found the employer had in fact taken prompt and

appropriate remedial action.

Employers would lose a key incentive to take corrective action if

they were automatically liable for harassment whether or not they put a

stop to it. As the Fifth Circuit observed, “Imposing vicarious liability on

an employer for a supervisor’s ‘hostile environment’ actions despite its

swift and appropriate remedial response to the victim’s complaint would

. . . undermine not only Meritor but Title VII’s deterrent policy.” Indest v.

Freeman Decorating, Inc., 164 F.3d 258, 266 (5th Cir. 1999). Employers

are better deterred from allowing harassment to continue if their prompt

corrective action will avoid liability. See Ellerth, 524 U.S. at 745, 118

S. Ct. at 2261 (“Limiting employer liability is also consistent with Title

_________________________

Seventh Circuit 3.04 (2015) (stating plaintiff must prove “seven things by a

preponderance of the evidence: . . . 7. Defendant did not take reasonable steps to [correct

the situation]/[prevent harassment from recurring”] (emphasis added)); Model Civil Jury

Instruction for the Dist. Cts. of the Eighth Circuit 8.42 (2017) (requiring plaintiff to

show seven elements, including “Seventh, the defendant failed to take prompt and

appropriate corrective action to end the harassment”); Model Civil Jury Instructions for

the Dist. Cts. of the Ninth Circuit 10.7 (2017) (“The plaintiff has the burden of proving

both of the following elements by a preponderance of the evidence: . . . 2. the

defendant or a member of the defendant’s management knew or should have known of

the harassment and failed to take prompt, effective remedial action reasonably calculated

to end the harassment.” (Emphasis added.)).

33

VII’s purpose to the extent it would encourage the creation and use of

antiharassment policies and grievance procedures.”).

Finally, allowing one marshaling instruction on direct negligence—

requiring the plaintiff to prove the employer knew or should have known

of the harassment and failed to take prompt and appropriate remedial

action—for both coemployee and supervisor harassment avoids

confusing jury instructions with differing standards. It also avoids

issues over whether a particular employee is a supervisor. Mixing

different authority levels of employees “presents no problem for the

negligence standard.” Vance, 570 U.S. at ___, 133 S. Ct. at 2452.

Haskenhoff is the master of her own pleadings. But by deciding to

pursue a direct negligence theory for supervisor harassment, rather than

vicarious liability, she assumed the burden of proving not only that HES

knew or should have known of Howes’s harassment, but also that it

failed to take prompt remedial action to stop it. Lynch, 454 N.W.2d at

833–34.

While the reasonableness of an employer’s response to

sexual harassment is at issue under both standards, the

plaintiff must clear a higher hurdle under the negligence

standard, where she bears the burden of establishing her

employer’s negligence, than under the vicarious liability

standard, where the burden shifts to the employer to prove

its own reasonableness and the plaintiff’s negligence.

Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999); see also

Swinton, 270 F.3d at 804 (“It might reasonably be argued, in fact, that

employers are ‘better off’ in the negligence context, where the plaintiff is

required to prove both the employer’s knowledge of the harassment (or

that it should have known) and that it failed to take reasonable corrective

action.”). The district court erred by omitting that element of proof from

Instruction No. 14. This error was not harmless.

34

Reversal is required when jury instructions contain a “material

misstatement of the law” or are misleading or confusing. Rivera, 865

N.W.2d at 902. When an instruction fails to convey a central principle of

liability, this warrants a new trial. See Benn v. Thomas, 512 N.W.2d 537,

539–40 (Iowa 1994) (remanding for new trial when jury instruction on

proximate cause “failed to adequately convey the existing law”); Law v.

Hemmingsen, 249 Iowa 820, 825–26, 89 N.W.2d 386, 390–91 (1958)

(determining refusal to instruct on well-settled principle of negligence “at

the very heart of the case” was error). The instruction omitted a central

element of the plaintiff’s claim—to show the failure of the employer to

take prompt and appropriate remedial action. Omission of this element

was a material misstatement of the law and entitles HES to a new trial.

See State v. Pearson, 804 N.W.2d 260, 265 n.1 (Iowa 2011) (holding

omission in the jury instruction of element of offense “requires a new

trial”); Law, 249 Iowa at 825–26, 89 N.W.2d at 390–91 (reversing

because it was error for court to refuse to instruct on combined

negligence).

“We assume prejudice unless the record affirmatively establishes

that there was no prejudice.” Rivera, 865 N.W.2d at 903. No prejudice

results 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.” Id. “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.” Id. (quoting

Law, 249 Iowa at 825, 89 N.W.2d at 390). That is what we have here.

The district court gave a separate instruction, No. 24, on remedial

action, which stated,

35

Once an employer knows or should have known of

sexual harassment, it must take prompt remedial action

reasonably calculated to end the conduct. The employer has

the duty to take this remedial action even if an employee

asks the employer not to do anything.

(Emphasis omitted.) This instruction was not cross-referenced in the

marshaling instruction or any other instruction and does not cure the

flaw in the marshaling instruction when the instructions are read as a

whole. The jury was nowhere told Haskenhoff had the burden to prove

HES failed to take prompt and appropriate remedial action to end the

harassment. 6

Haskenhoff cites no case holding the fatal omission in the

marshaling instruction could be cured by counsel during summation.7

6Nor is the plaintiff’s burden of proof addressed in Instruction No. 22, entitled

“Existence of Official Policies—Explained,” which told the jury that they could “consider

whether the defendant exercised reasonable care to”

[a] Monitor the workplace;

[b] Provide a system for making complaints;

[c] Encourage employees who believe they are being harassed to

complain

[d] Conduct prompt, thorough and impartial investigations into any

potential sexual harassment they become aware of, whether it is through a

complaint or observation or hearsay;

[e] Reasonably assure that any person who reports sexual harassment

will not suffer retaliation;

[f] Communicate their harassment policy to employees so employees will

understand what they may and may not do in the workplace;

[g] Educate the workforce, especially members of management, with

appropriate training to avoid committing sexual harassment . . . .

(Emphasis added.) This instruction allowed the jury to find for Haskenhoff if HES was

negligent in any of the above respects, even if the jury found the employer in fact took

prompt and appropriate remedial action to end the harassment.

7Hillrichs v. Avco Corp. is not to the contrary. 478 N.W.2d 70 (Iowa 1991),

overruled on other grounds by Reed v. Chrysler Corp., 494 N.W.2d 224, 230 (Iowa 1992),

overruled by Jahn v. Hyundai Motor Corp., 773 N.W.2d 550, 558–60 (Iowa 2009)).

There, we determined a uniform jury instruction on ordinary care adequately conveyed

the proper legal concept to the jury because it referred to care that “a reasonably careful

person would use under similar circumstances.” Id. at 74. We noted that the words

“under similar circumstances” allowed the standard to “adjust[] to both the status of

36

To the contrary, Haskenhoff’s counsel took advantage of the flawed jury

instruction in her closing argument. She did not say it was plaintiff’s

burden to prove HES failed to take prompt remedial action, but instead

argued

Number 24 talks about remedial action. Once an employer

knows or should know about the sexual harassment, it must

take prompt remedial action reasonably calculated to end

the conduct. The employer has a duty to take this remedial

action even if an employee asks the employer to do nothing.

(Emphasis added.) This is not a case like State v. Thorndike in which

counsel’s closing argument effectively cured the instructional error by

conceding the improper instruction did not apply under the evidence.

860 N.W.2d 316, 322–23 (Iowa 2015).

There was no instruction given by the court that allowed HES to

argue plaintiff could not recover without proving it failed to take prompt

remedial action. Closing arguments were lengthy, extending from the

morning until 2:30 p.m. and encompassing 130 pages of the trial

transcript. Closing arguments “generally carry less weight with a jury

than do instructions from the court.” Boyde v. California, 494 U.S. 370,

384, 110 S. Ct. 1190, 1200 (1990). “The former are usually billed in

advance to the jury as matters of argument, not evidence, and are likely

viewed as the statements of advocates; the latter . . . are viewed as

definitive and binding statements of the law.” Id. (citation omitted).

_________________________

the actor and the circumstances that the actor faces.” Id. We continued, “These are

matters that may be adequately conveyed to the jury by the evidence and by argument

of counsel under the instruction that the court gave.” Id. Hillrichs did not involve the

omission of an element of proof from the marshaling instruction.

37

We therefore determine HES is entitled to a new trial. 8 Rivera, 865

N.W.2d at 892 (“Prejudice occurs and reversal is required if jury

instructions have misled the jury, or if the district court materially

misstates the law.”).

C. Whether the District Court Erred in Instructing on a

“Motivating Factor” Standard for Retaliatory Discharge. HES argues

the district court erroneously adopted the lower “motivating factor”

causation standard used in discriminatory discharge claims (Iowa Code

section 216.6(1)(a)), rather than the higher “significant factor” causation

standard used in retaliatory discharge claims (Iowa Code section

8Because it may arise on remand, we clarify Haskenhoff cannot prove that HES

“knew or should have known” and failed to take remedial action by showing only that

Howes “knew what he was doing” when he behaved inappropriately toward Haskenhoff.

For example, the following exchange took place between Wendland and Haskenhoff’s

counsel regarding the alleged harassment:

Q. So regardless of whether somebody complains, if men are

commenting on another female’s breasts in the workplace, that would be

a violation of Homeland’s policy? A. Absolutely. If it was brought to my

attention and I knew about it or anybody in the company knew about it,

we would address it immediately.

Q. Including the plant manager? A. Including the plant

manager.

Q. And obviously if your plant manager is making the comments

about a woman’s breast, he knows he’s doing that; yes?

It is not sufficient that the perpetrator himself knows what he is doing, even if he is a

supervisor. Rather, to be placed on actual notice, someone “with authority to address

the problem” must be notified. Sharp, 164 F.3d at 930 (quoting Nash v. Electrospace

Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993); see also Sandoval v. Am. Bldg. Maint. Indus.,

Inc., 578 F.3d 787, 801 (8th Cir. 2009) (“An employer has actual notice of harassment

when sufficient information either comes to the attention of someone who has the power

to terminate the harassment, or it comes to someone who can reasonably be expected to

report or refer a complaint to someone who can put an end to it.”). The inquiry must

focus on whether someone with authority to discipline Howes and to take remedial

action knew of and failed to address the conduct. Sharp, 164 F.3d at 930 (“In the

context of sexual harassment, such persons are those with remedial power over the

harasser.”). Alternatively, Haskenhoff may prove constructive knowledge by showing

harassment was so open and pervasive that, in the exercise of reasonable care, it

should have been discovered by management-level employees. See Alvarez v.

Des Moines Bolt Supply, Inc., 626 F.3d 410, 422 (8th Cir. 2010).

38

216.11(2)). Haskenhoff argues that (1) under DeBoom, 772 N.W.2d at

12–13, the correct causation standard for all ICRA claims is the

motivating-factor test, and (2) unlike federal law, a lower causation

standard for retaliation should be used because the ICRA is a unified

statute and should be read broadly to effectuate its broad remedial goals.

See Iowa Code § 216.18(1). We note DeBoom was not a retaliation case

and apply our retaliation decisions that require the higher causation

standard. 772 N.W.2d at 13.

Our analysis begins with the text of the statute. The ICRA, Iowa

Code section 216.11(2), makes it an unfair or 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, obeys the provisions of this

chapter, or has filed a complaint, testified, or assisted in any

proceeding under this chapter.

In order to recover for retaliatory discharge, the plaintiff must prove

(1) he or she was engaged in statutorily protected activity,

(2) the employer took adverse employment action against

him or her, and (3) there was a causal connection between

his or her participation in the protected activity and the

adverse employment action taken.

Boyle, 710 N.W.2d at 750. The causation standard in retaliatory

discharge cases has been characterized as “a high one.” City of

Hampton, 554 N.W.2d at 535 (quoting Hulme, 480 N.W.2d at 42). The

causal connection “must be a ‘significant factor’ motivating the adverse

employment decision.” Id. (quoting Hulme, 480 N.W.2d at 42). A factor

is significant if the reason “ ‘tips the scales decisively one way or the

other,’ even if it is not the predominate reason behind the employer’s

decision.” Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 302

39

(Iowa 1998) (quoting Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d

682, 686 (Iowa 1990)).

A separate provision, Iowa Code section 216.6(1)(a), forbids

discriminatory discharge, i.e., discharge because of discrimination based

on a protected characteristic. Retaliatory discharge is different; it

prohibits discharge or discrimination based on the employee’s engaging

in a protected activity. See id. § 216.11(2). Though the two concepts are

related, they are not the same; one prohibits status-based discriminatory

discharge, while the other prohibits discharge based on a protected

activity in which an employee chooses to engage. See Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2532 (2013)

(explaining the difference between status-based claims and retaliation

claims). Under the discriminatory discharge statute, an employee must

show discrimination based on a characteristic—not engaging in a

protected activity—constituted a “motivating factor” in the adverse action

of the employer. DeBoom, 772 N.W.2d at 12–13. Discrimination is a

“motivating factor” in an adverse action if an employee’s status as a

member of a protected class “played a part” in the employer’s decision.

Id. at 12 (emphasis omitted). This is a lower causation standard than the

significant-factor standard applied in retaliatory discharge cases under

the ICRA and the common law. 9

DeBoom clarified that the motivating-factor test applied to

discriminatory discharge cases. See DeBoom, 772 N.W.2d at 13. But it

did not alter—or even reference by name or Code section—retaliatory

9This standard does not require retaliation to be the sole cause; the retaliatory

motive may combine with other factors to produce the result so long as “the other

factors alone would not have done so—if, so to speak, it was the straw that broke the

camel’s back.” Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881, 888 (2014).

40

discharge claims. Id. Rather, in DeBoom, we were careful to note the

difference between the discriminatory discharge causation standard and

the “higher” causation standard of claims such as tortious discharge. Id.

We have frequently compared tortious discharge under common law and

retaliatory discharge under the ICRA, as the two have traditionally

possessed similar elements and causation standards. See Teachout, 584

N.W.2d at 301–02 (stating high causation standard for tortious discharge

and comparing to Hulme, a retaliatory discharge case under the ICRA);

see also Brown v. Farmland Foods, Inc., 178 F. Supp. 2d 961, 979 (N.D.

Iowa 2001) (“[T]he Iowa Supreme Court has consistently sought guidance

in its common-law retaliatory discharge cases from its decisions involving

claims of statutory retaliation, which further demonstrates that the Iowa

Supreme Court would analyze these distinct causes of action in a similar

manner.”); cf. Scott Rosenberg & Jeffrey Lipman, Developing a Consistent

Standard for Evaluating a Retaliation Case Under Federal and State Civil

Rights Statutes and State Common Law Claims: An Iowa Model for the

Nation, 53 Drake L. Rev. 359, 414–15 (2005) (“The federal courts have

used the same approach in defining actionable employment conduct in

both statutory and common law cases.”). We noted in DeBoom that the

lower motivating-factor standard did not apply to tortious discharge, nor

was it intended to alter the higher significant-factor causation standard

used in ICRA retaliatory discharge claims. 772 N.W.2d at 13.

Because Count II alleged retaliatory discharge under Iowa Code

section 216.11 and not discriminatory discharge under section

216.6(1)(a), the jury should have been instructed on the correct

causation standard—requiring Haskenhoff to prove her protected

conduct was a significant factor. See, e.g., French v. Cummins Filtration,

Inc., No. C11-3024-MWB, 2012 WL 3498566, at *3 (N.D. Iowa Aug. 15,

41

2012) (“[Under ICRA] [a]s to the causal connection element, the standard

is high: ‘[T]he “causal connection” must be a “significant factor”

motivating the adverse employment decision.’ ” (alteration in original)

(quoting City of Hampton, 554 N.W.2d at 535)); Gilster v. Primebank, 884

F. Supp. 2d 811, 831 n.4 (N.D. Iowa 2012) (analyzing both Title VII and

ICRA together using determinative-factor approach), overruled on other

grounds, 747 F.3d 1007 (8th Cir. 2014); Van Horn v. Best Buy Stores,

L.P., 526 F.3d 1144, 1148 (8th Cir. 2008) (applying same higher

causation to ICRA and federal claim).

Haskenhoff notes the ICRA discriminatory discharge and

retaliatory discharge provisions use “similar” language. Compare Iowa

Code § 216.6(1)(a) (stating it is a “discriminatory practice for any . . .

[p]erson to . . . discharge any employee . . . because of” a protected

characteristic (emphasis added)), with id. § 216.11 (stating it is a

“discriminatory practice for . . . [a]ny person to discriminate or 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” (emphasis added)). 10 But, as

we previously noted in Estate of Harris v. Papa John’s Pizza, the

10The phrase “because of” does not require a motivating-factor standard of

causation. As the Supreme Court noted in Nassar, the default rule in interpreting

causation in tort is that “[i]n the usual course, this standard requires plaintiff to show

‘that the harm would not have occurred’ in the absence of—that is, but for—the

defendant’s conduct.” 570 U.S. ___, 133 S. Ct. at 2525 (quoting Restatement of Torts

§ 431 cmt. a (1934) (negligence)). Additionally, “the ordinary meaning of ‘because of’ is

‘by reason of’ or ‘on account of.’ ” Id. at ___, 133 S. Ct. at 2527 (quoting Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 176, 129 S. Ct. 2343, 2350 (2009)). Thus, the Nassar

Court concluded that when interpreting “because of,” it must mean that the retaliatory

intent was “ ‘the “reason” that the employer decided to act,’ or, in other words, that

‘[retaliation] was the “but-for” cause of the employer’s adverse decision.’ ” Id. at ___,

133 S. Ct. at 2527 (quoting Gross, 557 U.S. at 176, 129 S. Ct. at 2350).

42

retaliation provision of the ICRA mirrors almost exactly the retaliation

provision of Title VII, which states,

It shall be an unlawful employment practice for an employer

to discriminate against any of his employees . . . because he

has opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a

charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this

subchapter.

679 N.W.2d 673, 677 (Iowa 2004) (quoting 42 U.S.C.A. § 2000e–3

(2004)). “Title VII was designed to ensure equal opportunity in

employment for all, regardless of sex. The ICRA was modeled after Title

VII, and therefore we have consistently employed federal analysis when

interpreting the ICRA.” Id. at 677–78 (citation omitted). Finally, the

ICRA’s elements for establishing a prima facie case of retaliation were

derived “from federal decisions involving comparable provisions of Title

VII of the Civil Rights Act of 1964.” Hulme, 480 N.W.2d at 42 (citing 42

U.S.C. §§ 2000e–2000e-3).

Title VII provides a higher causation standard for retaliation claims

than discriminatory discharge actions. See Nassar, 570 U.S. at ___, 133

S. Ct. at 2534. In Nassar, a retaliation case brought under Title VII, the

Supreme Court explained that in codifying the 1991 Amendment to the

Civil Rights Act, Congress did not intend to lower the causation standard

for retaliatory discharge cases, although it unquestionably did so for

discriminatory discharge. Id. at ___, 133 S. Ct. at 2528–30. The Court

reasoned that the two provisions used different language and were found

in different sections of the Act and that Congress had inserted the

amendment into only one part. Id. The Court also pointed out the

increasing number of retaliation claims being filed. Id. at ___, 133 S. Ct.

43

at 2531. Lowering the causation standard, the Court explained, could

increase the number of unfounded claims:

In addition lessening the causation standard could

also contribute to the filing of frivolous claims, which would

siphon resources from efforts by employer[s], administrative

agencies, and courts to combat workplace harassment.

Consider in this regard the case of an employee who knows

that he or she is about to be fired for poor performance,

given a lower pay grade, or even just transferred to a

different assignment or location. To forestall that lawful

action, he or she might be tempted to make an unfounded

charge of racial, sexual, or religious discrimination; then,

when the unrelated employment action comes, the employee

could allege that it is retaliation. . . . Even if the employer

could escape judgment after trial, the lessened causation

standard would make it far more difficult to dismiss dubious

claims at the summary judgment stage. It would be

inconsistent with the structure and operation of Title VII to

so raise the costs, both financial and reputational, on an

employer whose actions were not in fact the result of any

discriminatory or retaliatory intent. Yet there would be a

significant risk of that consequence if respondent’s position

were adopted here.

Id. at ___, 133 S. Ct. at 2531–32 (citations omitted).

Turning to the ICRA, the retaliatory discharge and discriminatory

discharge provisions are codified at different sections of the Act, as they

are in Title VII, which supports the same conclusion reached in Nassar

that different causation standards apply. See id. at ___, 133 S. Ct. at

2530–31. Compare Iowa Code § 216.6 (discriminatory discharge), with id.

§ 216.11 (retaliatory discharge). Moreover, as the Nassar Court

concluded under Title VII, we have emphasized that the ICRA’s

retaliation protections cannot be so low as to “immunize the complainant

from discharge for past or present inadequacies, unsatisfactory

performance, or insubordination.” City of Hampton, 554 N.W.2d at 535–

36 (quoting Hulme, 480 N.W.2d at 43).

We reject Haskenhoff’s contention that we are “blindly” following

federal law. First, we are following our own precedent: our cases have

44

made clear that the correct causation standard for a retaliatory discharge

claim brought under section 216.11(2) of the ICRA is the significant-

factor standard. See id. at 535; Hulme, 480 N.W.2d at 42. We are

adhering to our consistent prior interpretations of the Act since 1992—

interpretations that have not been disturbed by the legislature—and the

doctrine of stare decisis. Ackelson v. Manley Toy Direct, L.L.C., 832

N.W.2d 678, 688 (Iowa 2013) (relying on stare decisis and legislative

acquiescence to adhere to interpretation of the ICRA disallowing punitive

damages); see also In re Estate of Vajgrt, 801 N.W.2d 570, 574 (Iowa

2011) (“The rule of stare decisis ‘is especially applicable where the

construction placed on a statute by previous decisions has been long

acquiesced in by the legislature . . . .’ ” (quoting Iowa Dep’t of Transp. v.

Soward, 650 N.W.2d 569, 574 (Iowa 2002)).

Predictability and stability are especially important in employment

law. Employers must comply with both state and federal law. Human

resources personnel and supervisors must apply myriad rules and

regulations in complex situations. Employers and prospective employers

should be able to rely on our precedents. We would generate significant

uncertainty if we overrule our own long-standing precedent to diverge

from settled federal interpretations. Uncertainty invites more litigation

and increasing costs for all parties. An uncertain or costly litigation

environment inhibits job creation.

The legislative history of the ICRA does not support the view that

we should depart from our long-standing practice of looking to federal

decisions to interpret the same or equivalent statutory language. While it

45

is true some provisions of the ICRA predated Title VII, 11 the ICRA’s

retaliation provision was enacted after Title VII and closely tracked the

federal provision. 12 Accordingly, we appropriately look to federal

decisions for guidance. Moreover, other states follow the federal

causation standard when interpreting their own state antiretaliation

statutes. 13 Congruity between state and federal requirements makes it

easier for employers and the bench and bar to apply and follow the law.

11Iowa had a statute predating Title VII, a criminal provision, which stated,

1. Every person in this state is entitled to the opportunity for

employment on equal terms with every other person. It shall be unlawful

for any person or employer to discriminate in the employment of

individuals because of race, religion, color, national origin or ancestry.

However, as to employment such individuals must be qualified to

perform the services or work required.

....

3. Any person, employer, labor union or officer of a labor union

or organization convicted of a violation of subsections one (1) or two (2) of

this Act shall be punished by a fine not to exceed one hundred dollars or

imprisonment in the county jail not to exceed thirty days.

1963 Iowa Acts ch. 330, § 1 (codified at Iowa Code § 735.6 (1966), subsequently

transferred to section 729.4 (1979)). This statute makes no mention of retaliation.

12See 1965 Iowa Acts ch. 121, § 8 (codified at Iowa Code § 105A.8 (1966)). The

Iowa provision used the language in Title VII of the Civil Rights Act of 1964. Compare

id. § 8(2) (prohibiting retaliation “because such person has lawfully opposed any

practice forbidden under this Act, obeys the provisions of this Act, or has filed a

complaint, testified, or assisted in any proceeding under this Act”), with Civil Rights Act

of 1964, Pub. L. No. 88–352, § 704(a), 78 Stat. 241, 258 (codified as amended at 42

U.S.C. § 2000e-3(a) (prohibiting retaliation “because he has opposed any practice made

an unlawful employment practice by this title, or because he has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under this title”).

13For example, in Wholf v. Tremco, Inc., the Ohio Court of Appeals applied a

higher causation standard to a retaliation claim under its own civil rights statute. 26

N.E.3d 902, 908–09 (Ohio Ct. App. 2015). The Wholf court noted,

[T]he [Ohio] General Assembly separated status-based discrimination

claims from retaliation claims in separate subsections of R.C. 4112.02.

And, despite Wholf’s argument to the contrary, Ohio’s anti-retaliation

provision is nearly identical to Title VII’s anti-retaliation provision.

Id. at 908. The court also pointed out that “the ‘but-for’ standard articulated in Nassar

is not a new standard; it is a clarification of the standard that has been applied in

46

We conclude the district court’s instruction applying the

motivating-factor causation standard was erroneous. In the marshaling

instruction for Count II, retaliatory discharge, the district court should

have instructed the jury that Haskenhoff must prove the protected

activity was a significant factor motivating the adverse action, consistent

with our precedent.

D. Whether the District Court’s Jury Instruction Improperly

Defined “Adverse Employment Action.” Next, we address whether the

court’s instruction defining an adverse employment action was

erroneous. HES argues the instruction reflected an inaccurate statement

of the law because it listed the following as examples of adverse action:

reprimands or threats of reprimands, . . . false accusations

or complaints, being investigated, being placed on a

performance improvement plan, being placed on probation,

or other actions which adversely affect or undermine the

_________________________

retaliation cases since the Supreme Court decided Price Waterhouse [v. Hopkins, 490

U.S. 228, 109 S. Ct. 1775 (1989),] in 1989.” Id. at 912; see also Asbury Univ. v. Powell,

486 S.W.3d 246, 255 (Ky. 2016) (noting that previous cases aligned with Nassar by

employing a substantial-factor test, in which the improper reason must be an “essential

ingredient” in the discharge (quoting First Prop. Mgmt. Corp. v. Zarebidaki, 867 S.W.2d

185, 187 (Ky. 1994))); Goree v. United Parcel Serv., Inc., 490 S.W.3d 413, 439 (Tenn. Ct.

App. 2015) (stating that Tennessee Act did not require sole causation, but required but-

for causation, following Nassar); Navy v. Coll. of the Mainland, 407 S.W.3d 893, 901

(Tex. Ct. App. 2013) (stating that unlike discrimination claims, retaliation claims

require higher standard of causation under Texas Act).

Other courts recognize that a higher standard of causation is necessary for

retaliation claims, though they define the standard in varying ways. See Hensley v.

Botsford Gen. Hosp., No. 323805, 2016 WL 146355, at *6 n.1 (Mich. Ct. App. Jan. 12,

2016) (per curiam) (suggesting that under a significant-factor or but-for test, the result

would be the same); Thompson v. Dep’t of Corr., No. 319668, 2015 WL 1261539, at *5

(Mich. Ct. App. March 19, 2015) (per curiam) (“While there is authority that states an

employer is liable if discrimination is a motivating factor, retaliation cases continue to

require a showing that retaliation must be a significant factor.” (Citation omitted.));

Lacasse v. Owen, 373 P.3d 1178, 1183 (Or. Ct. App. 2016) (“[P]laintiff must prove that

defendant’s unlawful motive was a substantial factor in his termination, or, in other

words, that he would have been treated differently in the absence of the unlawful

motive.”); Allison v. Hous. Auth., 821 P.2d 34, 94–95 (Wash. 1995) (en banc) (declining

to adopt a standard imposing liability if retaliation affected motive “to any degree”).

47

position of the employee[,] . . . an employer seeking out

negative feedback on an employee, or condoning or

encouraging other employees to complain about her.

HES points out that no Iowa court has held these actions are “materially

adverse actions” for purposes of a retaliation claim under the ICRA.

In order to prove retaliation, a plaintiff must show “the employer

took adverse employment action against him or her.” Boyle, 710 N.W.2d

at 750. We previously held that an adverse employment action is “an

action that detrimentally affects the terms, conditions, or privileges of

employment. Changes in duties or working conditions that cause no

materially significant disadvantage to the employees are not adverse

employment actions.” Channon v. United Parcel Serv., Inc., 629 N.W.2d

835, 862 (2001). “[A] wide variety of actions, some blatant and some

subtle, can qualify” as adverse employment actions. Id. at 863 (quoting

Bryson v. Chi. State Univ., 96 F.3d 912, 916 (7th Cir. 1996)). Adverse

action may include “disciplinary demotion, termination, unjustified

evaluations and reports, loss of normal work assignments, and extension

of probationary period.” Id. (quoting McKenzie v. Atl. Richfield Co., 906

F. Supp. 572, 575 (D. Colo. 1995)). We have also concluded that losing a

prestigious title or opportunity for advancement, physically punching an

employee, and reducing an employee from full- to part-time can qualify

as adverse employment actions. See id. at 865 (constructive demotion);

see also Estate of Harris, 679 N.W.2d at 678 (punching employee in

chest); City of Hampton, 554 N.W.2d at 536 (reduction of hours).

Whether an adverse employment action occurred “normally depend[ed]

on the facts of each situation.” Channon, 629 N.W.2d at 862 (quoting

Bryson, 96 F.3d at 916); see also Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53, 71, 126 S. Ct. 2405, 2417 (2006) (“[M]aterially adverse

depends upon the circumstances of the particular case, and ‘should be

48

judged from the perspective of a reasonable person in the plaintiff’s

position, considering “all the circumstances.” ’ ” (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 1003

(1998))).

The Supreme Court in Burlington Northern provided further

guidance on what qualifies as an adverse employment action in a

retaliation claim. A female employee, Sheila White, was assigned to

operate a forklift, a desirable position because it was less arduous and

cleaner than other tasks. 548 U.S. at 57–58, 126 S. Ct. at 2409. After

White complained about a male employee harassing her, she was moved

off forklift duty and reassigned to a more physically demanding position.

Id. at 58, 126 S. Ct. at 2409. White filed an EEOC complaint. Id.

Shortly thereafter, her supervisor alleged she was insubordinate, and the

company suspended her without pay for thirty-seven days. Id. After

determining the complaint was unfounded, the company reinstated her

with backpay. Id.

Deciding whether White had suffered an adverse employment

action, the Court declined to limit a retaliatory adverse action to only

those that “affect the terms and conditions of employment.” Id. at 64,

126 S. Ct. at 2412–13. This differed from the Court’s interpretation of

adverse action under the antidiscrimination provision, which only

prohibited “employment-related” adverse action. Id. at 63, 126 S. Ct. at

2412. This was because the antidiscrimination provision was intended

to promote equality in employment opportunities, and therefore, the

purpose would be achieved “were all employment-related discrimination

miraculously eliminated.” Id. But the Court recognized the retaliation

provision’s objective could not likewise be achieved by only prohibiting

employment-related harms because “[a]n employer can effectively

49

retaliate against an employee by taking actions not directly related to his

employment or by causing him harm outside the workplace.” Id.

Thus, the Court took a broader approach, allowing a plaintiff

alleging an adverse action was “materially adverse” to prove the action

would have “dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Id. at 68, 126 S. Ct. at 2415 (quoting Rochon

v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The Court

elaborated,

We speak of material adversity because we believe it is

important to separate significant from trivial harms. Title

VII, we have said, does not set forth “a general civility code

for the American workplace.” An employee’s decision to

report discriminatory behavior cannot immunize the

employee from those petty slights or minor annoyances that

often take place at work and that all employees experience.

The antiretaliation provision seeks to prevent employer

interference with “unfettered access” to Title VII’s remedial

mechanisms. It does so by prohibiting employer actions that

are likely “to deter victims of discrimination from

complaining to the EEOC,” the courts, and their employers.

And normally petty slights, minor annoyances, and simple

lack of good manners will not create such deterrence.

Id. (citations omitted) (first quoting Oncale, 523 U.S. at 80, 118 S. Ct. at

1002; and then quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117

S. Ct. 843, 848 (1997)).

The Court stressed that the “significance of any given act of

retaliation will often depend on the particular circumstances.” Id. at 69,

126 S. Ct. at 2415. Under this standard, the Court held that

reassignment to a less desirable job and suspension was an adverse

employment action. Id. at 71, 126 S. Ct. at 2417. The Court noted,

Common sense suggests that one good way to discourage an

employee such as White from bringing discrimination

charges would be to insist that she spend more time

performing the more arduous duties and less time

performing those that are easier or more agreeable.

50

Id. at 70–71, 126 S. Ct. at 2416. Still, the Court took pains to recognize

that “reassignment of job duties is not automatically actionable” and will

“depend[] upon the circumstances of the particular case.” Id. at 71, 126

S. Ct. at 2417. The Court also concluded that although White had

received backpay for the time of her suspension, it was still adverse

action because “White and her family had to live for 37 days without

income. . . . Many reasonable employees would find a month without a

paycheck to be a serious hardship.” Id. at 72, 126 S. Ct. at 2417. We

find Burlington Northern persuasive and adopt it as the appropriate

inquiry for evaluating an adverse employment action under the ICRA.

Burlington Northern, however, does not rescue the jury instruction

here. Even before Burlington Northern, we recognized that adverse

employment actions can occur in a variety of situations and “will

normally depend on the facts of each situation.” Channon, 629 N.W.2d

at 862 (quoting Bryson, 96 F.3d at 916). To the extent that Burlington

Northern broadened the inquiry to situations that do not directly affect

the terms or conditions of employment, the jury instruction captured this

sentiment, defining adverse action as “anything that might dissuade a

reasonable person from making or supporting an allegation of

discrimination or harassment.” But the instruction went too far when it

effectively told the jury that reprimands or performance improvement

plans constituted adverse action as a matter of law. Cases both before

and after Burlington Northern have consistently held that “a negative

performance review on its own does not constitute an ‘adverse

employment action’ . . . unless the review was relied on in making

promotion decisions about the employee.” Rebouche v. Deere & Co., 786

F.3d 1083, 1088 (8th Cir. 2015).

51

Prior to Burlington Northern, in Farmland Foods, when an employer

criticized an employee because of the slow pace of his work, we

determined that “occasional complaints voiced by an employer about

employee performance standards” did not constitute “substantial

evidence of a materially adverse employment action.” 672 N.W.2d at

742. We explained that the employee’s internal transfer also did not

qualify as an adverse action because “minor changes in working

conditions that only amount to an inconvenience cannot support

discrimination.” Id. We added, “An employment action is not adverse

merely because the employee does not like it or disagrees with it.” Id.

Similarly, in Powell v. Yellow Book USA, Inc., although an employee

received three written reprimands after filing a complaint with the ICRC,

“she [could] point to no cut in her pay, no reduction in her hours, nor

any other significant change to the conditions of her employment.” 445

F.3d 1074, 1079 (8th Cir. 2006). The Eighth Circuit concluded that

“formal criticisms or reprimands that do not lead to a change in

compensation, responsibilities, or other benefits do not constitute an

adverse employment action under Title VII.” Id. In addition, “placing [an

employee] on a ‘performance improvement plan,’ without more, [does] not

constitute an adverse employment action.” Givens v. Cingular Wireless,

396 F.3d 998, 998 (8th Cir. 2005) (per curiam).

A majority of circuits addressing the question have held that a

reprimand or performance improvement plan, without more, cannot be

considered an adverse employment action under Burlington Northern.

See Rebouche, 786 F.3d at 1088; see also Jensen-Graf v. Chesapeake

Emp. Ins., 616 F. App’x 596, 598 (4th Cir. 2015) (per curiam) (concluding

denial of professional development course because employee was on

performance improvement plan was not adverse action under Burlington

52

Northern); Barnett v. Athens Reg’l Med. Ctr. Inc., 550 F. App’x 711, 715

(11th Cir 2013) (per curiam) (“[T]he negative performance evaluation

would not, by itself, have deterred a reasonable person from making a

charge of discrimination, especially in this case, where such an

evaluation, by itself, would not impact his salary or job status.”); Fox v.

Nicholson, 304 F. App’x 728, 733 (10th Cir. 2008) (per curiam) (applying

Burlington Northern under Americans with Disabilities Act and finding

that when employee had lower scores and negative comments on reviews

but was still in satisfactory range, no adverse employment action);

Vaughn v. Louisville Water Co., 302 F. App’x 337, 348 (6th Cir. 2008)

(stating lower performance reviews may only be adverse actions if they

“significantly impact an employee’s wages or professional advancement”);

James v. Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir. 2007)

(concluding poor evaluations not adverse action unless “markedly worse

than earlier ones” and impacted “professional advancement” because

they would not have dissuaded a reasonable employee from filing a Title

VII claim).

Under the facts of this case, the performance improvement plan,

alone, did not cause Haskenhoff material harm either within the

workplace or outside of it. Haskenhoff was never suspended, with or

without pay. See Burlington N., 548 U.S. at 72, 126 S. Ct. at 2417. Her

work hours were not reduced, nor was her pay cut. The performance

improvement plan did not affect her professional advancement. See id.

at 69, 126 S. Ct. at 2416. Her duties and status remained unchanged,

both within the workplace and outside of it. Under her performance

improvement plan, Haskenhoff was only required to abide by rules

applicable to others in her position. See Fischer v. Andersen Corp., 483

F.3d 553, 556–58 (8th Cir. 2007) (holding that placement on

53

performance improvement plan was not a constructive discharge when

employee acknowledged that plan requirements “were largely fair and in

conformance with what one would expect from an engineer”). 14

Moreover, Finke and Wendland assured Haskenhoff that if she wanted

any revisions, the plan would be changed to reflect her concerns. The

timing of the plan and allegations giving rise to it were suspect, but these

factors were for the jury to weigh under a correct instruction. The

district court erred by instructing the jury the performance improvement

plan was an adverse employment action as a matter of law.

“We have on a number of occasions found instructions that unduly

emphasized certain evidence were flawed and required reversal.” Alcala,

880 N.W.2d at 710 (quoting Burkhalter v. Burkhalter, 841 N.W.2d 93,

106 (Iowa 2013)). Jury instructions should not comment on specific

evidence or erroneously advise the jury “that certain facts are undisputed

when there is conflicting evidence on the question.” Locksley v.

Anesthesiologists of Cedar Rapids, P.C., 333 N.W.2d 451, 455 (Iowa

1983); see also 89 C.J.S. Trial § 581, at 36 (2012) (“[I]mpermissible

comments in jury instructions include those where the court assumes

the truth of a material controverted fact or . . . withdraws some pertinent

evidence from the jury’s consideration.”). For example, in Locksley, we

upheld a district court’s refusal to give a jury instruction that defendant

was competent as a matter of law because his competence was disputed,

14The performance improvement plan stated Haskenhoff must abide by the

following: (1) not “walk[] off the job and abandon [her] job responsibilities”; (2) not “us[e]

vulgar language towards another”; (3) not “send[] hostile, disrespectful, or inappropriate

emails to employees”; (4) not “post[] comments about the company or other employees

on a social network”; (5) go through the chain of command rather than “address[ing] the

problem [her]self”; (6) attend work during the “core work hours of 8AM to 4PM” and

“approv[e] ahead of time” coming in or leaving early; (7) not leave the plant “during the

work day for non-work related reasons”; and (8) approve paid time off “ahead of time.”

54

and the proposed instruction would have taken a factual determination

from the jury. 333 N.W.2d at 455.

Instruction No. 30 provided that certain activities constituted

adverse employment actions as a matter of law. The list included

matters that no court in Iowa—or the Iowa Civil Rights Commission or

EEOC, for that matter—has concluded constitute an adverse

employment action as a matter of law. See EEOC Enforcement Guidance

on Retaliation and Related Issues (Aug. 25, 2016), https://

www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref113. By

stating certain instances of conduct that occurred in this case were

examples of adverse employment actions (and thus adverse action as a

matter of law), the instruction took that factual determination away from

the jury and relieved Haskenhoff of her burden of proof on that element

of the retaliation claim. See Anderson, 620 N.W.2d at 267 (providing

examples of breaches of duty of care in negligence action takes

determination away from the jury because jury must be the one to apply

the legal standard to the facts). We conclude the adverse-action

instruction misstated the law and unduly emphasized certain evidence.

This prejudicial error requires a new trial.

E. Whether the Constructive Discharge Instruction Misstated

the Law. We next address the district court’s instruction on constructive

discharge. “Constructive discharge exists when the employer deliberately

makes an employee’s working conditions so intolerable that the employee

is forced into an involuntary resignation.” Van Meter Indus. v.

Mason City Human Rights Comm’n, 675 N.W.2d 503, 511 (Iowa 2004)

(quoting First Judicial Dist. Dep’t of Corr. Servs. v. Iowa Civil Rights

Comm’n, 315 N.W.2d 83, 87 (Iowa 1982)). The policy behind constructive

discharge is simple: an employer “should not be able to accomplish

55

indirectly what the law prohibits directly.” 1 Barbara T. Lindemann

et al., Employment Discrimination Law 21-33 (5th ed. 2012) [hereinafter

Lindemann].

In an attempt to avoid liability, an employer may refrain from

actually firing an employee, preferring instead to engage in

conduct causing him or her to quit. The doctrine of

constructive discharge addresses such employer-attempted

“end runs” around wrongful discharge and other claims

requiring employer-initiated terminations of employment.

Balmer v. Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000) (quoting

Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1025 (Cal. 1994)

(en banc)). Employees often allege discriminatory constructive discharge

because it allows recovery of backpay. Van Meter Indus., 675 N.W.2d at

510–11. “[T]rivial or isolated acts of the employer are not sufficient to

support a constructive discharge claim.” Id. at 511. “Rather, the

‘working conditions must be unusually “aggravated” or amount to a

“continuous pattern” before the situation will be deemed intolerable.’ ”

Id. (quoting Haberer v. Woodbury County, 560 N.W.2d 571, 576 (Iowa

1997)). Constructive discharge is not its own cause of action, but must

be asserted under a common law or statutory framework, such as the

Iowa Civil Rights Act. See Balmer, 604 N.W.2d at 642 (outlining that

constructive discharge can be a form of wrongful discharge or asserted

under statute allowing recovery). As such, it can either be alleged under

a discrimination claim (“The employer made my working conditions

intolerable by discriminating on the basis of an unfair characteristic.”),

or as an adverse action under a retaliation theory (“The employer

retaliated against me by making my working conditions intolerable.”). As

is the case here, “[c]onstructive discharge, like any other discharge, is an

adverse employment action that will support an action for unlawful

56

retaliation.” West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir.

1995).

HES asserts three errors in the constructive discharge instruction.

First, HES contends that it was error to instruct the jury, “The employer

need not really want the employee to quit.” Second, HES argues the

district court erred by inserting a subjective standard into the definition

of constructive discharge. Third, HES assigns error to the district court’s

refusal to allow an instruction stating “conditions will not be considered

intolerable unless the employer has been given a reasonable chance to

resolve the problem.”

1. Employer need not want the employee to quit. We conclude

there was no error in the district court’s instruction on the principle that

“[t]he employer need not really want the employee to quit.” In Van Meter

Industries, Jane Sires quit her job with Van Meter Industries after being

passed over for a promotion and “relegated to the operations side of the

business where there was no reasonable likelihood of advancement into a

manager position” because of her sex. 675 N.W.2d at 511. Sires

conceded she did not think Van Meter Industries “really wanted her to

quit.” Id. at 512. We stated,

Although it may be undisputed that VMI wanted Sires to

stay on the job, this fact does not preclude a finding that the

company deliberately rendered Sires’ working conditions so

intolerable that a reasonable employee in Sires’ position

would resign.

Id. It is enough “that the employee’s resignation was a reasonably

foreseeable consequence of the insufferable working conditions created

by the employer.” Id. We reversed the district court’s finding there was

not substantial evidence Sires was constructively discharged. Id. at 513.

Pursuant to Van Meter Industries, the jury was correctly instructed the

57

employer need not really want the employee to quit to claim constructive

discharge.

2. Objective standard for constructive discharge. HES next asserts

error because the constructive discharge instruction wrongly directed the

jury to consider a subjective standard. The instruction stated, “The

employee must show that she was subjected to sexual harassment or

retaliation [that] made her believe there was no chance for fair treatment

at Homeland.” (Emphasis added.) We conclude it should have said,

“made her reasonably believe.”

The test for constructive discharge is objective, evaluating whether

a reasonable person in the employee’s position would have been

compelled to resign and whether an employee reasonably believed there

was no possibility that an employer would respond fairly. Id. at 511.

“The issue thus is not how plaintiff felt but whether a reasonable person

in his position would have felt the same way.” Reihmann v. Foerstner,

375 N.W.2d 677, 683 (Iowa 1985).

“[W]orking conditions must be unusually ‘aggravated’ or amount to

a ‘continuous pattern’ before the situation will be deemed intolerable.”

Van Meter Indus. 675 N.W.2d at 511 (quoting Haberer, 560 N.W.2d at

576). In Haberer, a police officer resigned after he was placed on a paid,

eighteen-month suspension followed by an unpaid thirty-day suspension

pending a criminal investigation against him. 560 N.W.2d at 573. When

the officer returned to duty, he was reassigned to office work. Id. After

receiving notice his wages would be garnished for unpaid child support,

the officer resigned. Id. We held, as a matter of law, no constructive

discharge had occurred. Id. at 578. Haberer’s reassignment to office

work was not “(1) a change in grade, (2) inconsistent with or outside the

scope of his job description, (3) a decrease in pay or prestige, (4)

58

impossible to do, or (5) anything beyond a mere ‘difficulty’ because of a

lack of ‘experience.’ ” Id. at 577. We noted,

Under the cases, an employee cannot simply “quit and sue,”

claiming he or she was constructively discharged. The

conditions giving rise to the resignation must be sufficiently

extraordinary and egregious to overcome the normal

motivation of a competent, diligent, and reasonable employee

to remain on the job to earn a livelihood and to serve his or

her employer. . . .

. . . Every job has its frustrations, challenges, . . . and

disappointments; these inhere in the nature of work. [An

employee is not] guaranteed a working environment free of

stress.

Id. at 575–76 (alteration in original) (quoting Turner, 876 P.2d at 1026–

27).

The first paragraph of the constructive discharge instruction

focused on whether the conditions were “intolerable so that the employee

reasonably feels forced to quit.” But the second paragraph implied that

“intolerable” conditions equated to the employee’s subjective belief there

was “no chance for fair treatment at Homeland.” This was not a correct

statement of law. See Van Meter Indus., 675 N.W.2d at 511–12 (stating

that constructive discharge results when “employee has no recourse

within the employer’s organization or ‘reasonably believes there is no

chance for fair treatment’ ” (emphasis added) (citation omitted) (quoting

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997))).

Nevertheless, omitting “reasonably” in one sentence of the

constructive discharge instruction was harmless when the instructions

are read as a whole. “[W]e look to the instructions as a whole and do not

require perfection.” Rivera, 865 N.W.2d at 902. Another instruction

stated,

59

INSTRUCTION NO. 34

INTOLERABLE WORKING CONDITIONS – DEFINED

Working conditions are intolerable if a reasonable

person in the plaintiff’s situation would have deemed

resignation the only reasonable alternative.

The conditions giving rise to the resignation must be

sufficiently extraordinary and egregious to overcome the

normal motivation of a competent, diligent and reasonable

employee to remain on the job to earn a livelihood and to

serve his or her employer.

The adverse working conditions must be unusually

“aggravated” or amount to a “continuous pattern” before the

situation will be deemed intolerable. A single, trivial or

isolated act is insufficient to support a constructive

discharge claim.

The instructions on constructive discharge mentioned the standard of

“reasonable belief” or “reasonable employee” no less than five times. In

addition, the sentence immediately following the offending statement in

the marshaling instruction clarified the objective standard, elaborating

that the employee must “reasonably believe” there is no possibility of fair

treatment. Reading the instructions together “leads to the inevitable

conclusion the jury could not have misapprehended the issue” on the

constructive discharge objective standard. Moser v. Stallings, 387

N.W.2d 599, 605 (Iowa 1986).

3. Reasonable chance to resolve the problem. HES raises a final

point that the district court should have given its requested instruction

stating that “conditions cannot be considered intolerable unless the

employer has been given a reasonable chance to resolve the problem.”

We conclude HES’s requested instruction was a correct statement of the

law and was not adequately embodied in other instructions. Therefore,

on this record, it was reversible error for the district court to refuse to

give that instruction.

In Van Meter Industries, we squarely decided that an employee

must give an employer “a reasonable chance to resolve the problem.”

60

675 N.W.2d at 511. Sires reported to one of her superiors and to the

director of human resources before resigning that she felt she “ ‘had

reached [the] highest level [she] was going to be allowed to go’ and that

she was considering resigning.” Id. at 508 (alterations in original). Her

superior asked her to “wait,” and the human resources director told her

to “hang in there.” Id. A week passed with no response. Id. Sires then

received a phone call in which she was given “vague reassurance[s]” and

informed that if the individual who made the promotion decision “had it

to do over again, he would still promote [the male employee] over her.”

Id. Sires resigned two days later, and Van Meter Industries accepted her

resignation without protest. Id. The commission found that Sires had

been constructively discharged. Id. at 509. The district court reversed,

believing “Sires had not given VMI ‘any opportunity to work on the

problem before she quit,’ ” among other reasons. 15 Id. at 510.

On review, we began by noting that “conditions will not be

considered intolerable unless the employer has been given a reasonable

chance to resolve the problem.” Id. at 511. We then tempered this

statement: “On the other hand, an employee need not stay if he or she

reasonably believes there is no possibility the employer will respond

fairly.” Id. Examining Sires’ constructive discharge claim, we observed

she gave Van Meter Industries a reasonable opportunity to remedy the

discrimination. Id. at 513. Although she waited only one month before

15It has been suggested our decision in Van Meter Industries was not

precedential on this point. However, whether Sires could recover without giving the

employer a “reasonable opportunity to resolve the problem” was a fighting issue. That

was the basis for the district court’s reversal of the commission’s decision. See

Van Meter Indus., 675 N.W.2d at 510. We recognized the defendant employer “claim[ed]

Sires failed to give the company an adequate opportunity to address her grievances and

so cannot rely on the constructive discharge doctrine.” Id. at 513. We addressed that

claim, spending almost a full page on the discussion. Id.; see also Ackelson, 832

N.W.2d at 688 (“We are slow to depart from stare decisis and only do so under the most

cogent circumstances.”).

61

quitting, Sires had a reasonable belief her employer would not resolve the

problem:

In the weeks between Meyers’ promotion and Sires’

resignation the company not only took no action to

investigate Sires’ complaints, it gave no indication that it

intended to conduct an inquiry. The company’s indifference

was further demonstrated by the fact Sires was referred to

the individual who made the discriminatory promotion

decision to seek a resolution of her grievance. This

individual, rather than assuring Sires that appropriate and

prompt remedial action would be taken, informed her that he

would make the same decision again if he had it to do over

and reaffirmed that the company saw her future in

operations.

Id. (citation omitted). Because Sires demonstrated a reasonable belief

her employer would not resolve the problem, we concluded,

[W]e cannot say under the specific circumstances of this

particular case that she acted precipitously. A review of the

evidence shows this case is not one where the company did

not have sufficient time to rectify its wrong. . . . Rather, this

case presents a situation where the company, when given

the opportunity, chose to perpetuate its discriminatory

practices.

Id.

We supported our decision by citing Iowa precedent and precedent

from the Eighth Circuit. See id. at 511 (citing Breeding v. Arthur J.

Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir. 1999), abrogated in part

on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043

(8th Cir. 2011); First Judicial Dist. Dep’t of Corr. Servs., 315 N.W.2d at

89). In First Judicial District Department of Correctional Services, we

denied recovery on a race and disability constructive discharge claim

when the department of corrections issued an order restricting an

African-American blind counselor’s access to the jail due to a security

risk. 315 N.W.2d at 85. The employee quit one day later. Id. We held

the employee “was precipitous; she overreacted.” Id. at 89. She “failed to

62

make a good faith effort to determine whether the restriction from the jail

would render her employment as onerous as she now contends,” and the

record contained nothing showing the restriction was permanent. Id.

Her “immediate resignation ... deprived [the employer] of the

opportunity to investigate and remedy the situation.” Id.; see also

Haberer, 560 N.W.2d at 577 (denying recovery based in part on

employee’s “rash and intemperate” act of resigning); cf. Johnson v. Dollar

Gen., 880 F. Supp. 2d 967, 998 n.6 (N.D. Iowa 2012) (“[T]he Iowa

Supreme Court has observed that ‘conditions will not be considered

intolerable [so as to constitute constructive discharge] unless the

employer has been given a reasonable chance to resolve the problem,’

and Johnson gave Dollar General and Williams no such opportunity

before resigning.” (alteration in original) (citation omitted) (quoting

Van Meter Indus., 675 N.W.2d at 511)), aff’d, 508 F. App’x 587 (8th Cir.

2013).

The Eighth Circuit has held that to demonstrate constructive

discharge, an employee must show that a “reasonable person would find

the working conditions intolerable.” Phillips v. Taco Bell Corp., 156 F.3d

884, 890 (8th Cir. 1998). “Such intolerability . . . is judged by an

objective standard, not the plaintiff’s subjective feelings.” Id. “To act

reasonably, an employee has an obligation not to assume the worst and

not to jump to conclusions too quickly.” Tidwell v. Meyer’s Bakeries,

Inc., 93 F.3d 490, 494 (8th Cir. 1996). Thus, “[a]n employee who quits

without giving [the] employer a reasonable chance to work out a problem

has not been constructively discharged.” Id. Indeed, “passivity in the

face of working conditions alleged to be intolerable is often inconsistent

with the allegation.” Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th

Cir. 1998). But “[i]f an employee quits because she reasonably believes

63

there is no chance for fair treatment, there has been a constructive

discharge.” Kimzey, 107 F.3d at 574.

Peggy Kimzey, an employee at Wal-Mart, complained to

management several times about repeated harassment by her supervisor.

Id. at 571. Management told her they were aware of the problem but

took no action to investigate or follow up on the complaint. Id. Even

after Kimzey resigned because of her supervisor’s continued conduct, her

manager “did not indicate that he would investigate her complaints or

take any other action required by Wal-Mart’s open door policy.” Id. at

572. The Eighth Circuit held that “[a] reasonable jury could find that the

continuing harassment and management’s indifference rendered

Kimzey’s working conditions intolerable and forced her to quit.” Id. at

574–75. It highlighted the evidence that members of Wal-Mart knew

Kimzey was being harassed, but “generally ignored those complaints.”

Id. at 574. Because Kimzey demonstrated a reasonable belief there was

no chance of fair treatment at Wal-Mart, the Eighth Circuit found no

error in submitting the constructive discharge claim to the jury. Id. at

575; see also Sanders v. Lee Cty. Sch. Dist. No. 1, 669 F.3d 888, 894 (8th

Cir. 2012) (finding discriminatory constructive discharge claim supported

when employee reasonably believed no chance for fair treatment because

employer failed to respond to repeated requests for information about

reassignment); Henderson v. Simmons Foods, Inc., 217 F.3d 612, 617

(8th Cir. 2000) (affirming constructive discharge claim when employee

“essentially is left with no choice other than the termination of her

employment” due to employer’s failure to investigate or respond to

knowledge of harassment).

By contrast, in Alvarez v. Des Moines Bolt Supply, Inc., the Eighth

Circuit held the district court properly granted summary judgment on a

64

constructive discharge claim when an employee failed to notify the

employer of retaliatory harassment. 626 F.3d 410, 418 (8th Cir. 2010).

Veronica Alvarez notified her employer of inappropriate sexual conduct

by her coworker. Id. at 413–14. Her employer investigated the claims

and suspended the harassing coworker. Id. at 415. Other coworkers

then began to harass her in retaliation for her complaint. Id. However,

Alvarez failed to notify the employer about the postsuspension

harassment before she resigned. Id. The Eighth Circuit concluded

Alvarez had given her employer “no reasonable opportunity to remedy the

problem.” Id. at 419. Alvarez argued she should be excused from the

notice requirement because her prior complaint showed she “had no

chance for fair treatment if she complained again about harassment.” Id.

But “[p]art of an employee’s obligation to be reasonable,” the court held,

“is an obligation not to assume the worst, and not to jump to conclusions

too fast.” Id. (quoting Smith v. Goodyear Tire & Rubber Co., 895 F.2d

467, 473 (8th Cir. 1990)). Thus, her prior complaint “did not excuse

Alvarez from at least notifying DMB about the continued misconduct to

see how the company would respond.” Id.

Other cases have similarly held, unless the employee demonstrates

a reasonable belief there is no chance for fair treatment, he or she must

give the employer a chance to respond before resigning due to retaliatory

conduct. 16 See Phillips, 156 F.3d at 891 (determining employee not

16Ithas been suggested giving the employer a reasonable chance to resolve the

problem “is another effort to transplant” the Faragher–Ellerth defense. However, this

assertion overlooks that the Faragher–Ellerth defense has already been held to apply to

certain instances of constructive discharge. See Pa. State Police v. Suders, 542 U.S.

129, 141, 124 S. Ct. 2342, 2351 (2004) (stating absent a “tangible employment action,”

the defense “is available to the employer whose supervisors are charged with

harassment” resulting in constructive discharge); see also id. at 150–51 & n.10, 124

S. Ct. at 2356 & n.10 (noting Eighth Circuit and other caselaw analyzing whether

“employee’s decision to resign was reasonable under the circumstances” specifically

65

constructively discharged when manager retaliated against her by

speaking to her in “nasty” tone because she “fail[ed] to give Taco Bell a

fair opportunity to demonstrate that it had remedied the situation”);

Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247–48 (8th Cir. 1998)

(holding employee was not constructively discharged when she

complained about retaliation but failed to give the employer’s method for

solving the problem a chance); Tidwell, 93 F.3d at 496 (concluding

employee who quit the day after seeing allegedly retaliatory schedule

change not constructively discharged because he failed to give employer

“an opportunity to explain the situation or remedy it”). Such a rule

recognizes that “a reasonable waiting period is inversely related to the

severity of the situation,” Watson v. Heartland Health Labs., Inc., 790

F.3d 856, 864 (8th Cir. 2015), and there may be cases of severe

harassment or retaliation when it is reasonable for the employee to

resign immediately. It also acknowledges there may be times when the

_________________________

consider whether the employer was given “a chance to respond” (first quoting Suders v.

Easton, 325 F.3d 432, 462 (3d Cir. 2003); and then quoting Jaros v. LodgeNet, Entm’t

Corp., 294 F.3d 960, 965 (8th Cir. 2002))).

Principles of deterrence and avoidance undergird theories of employment

liability. See Sara Kagay, Applying the Ellerth Defense to Constructive Discharge: An

Affirmative Answer, 85 Iowa L. Rev. 1035, 1061 (2000) (“The purpose of Title VII is to

encourage anti-harassment policies, promote conciliation, and prevent harassment.”).

These principles are evident in both the doctrine of constructive discharge and the

Faragher–Ellerth defense. See Shari M. Goldsmith, The Supreme Court’s Suders Problem:

Wrong Question, Wrong Facts Determining Whether Constructive Discharge Is a Tangible

Employment Action, 6 U. Pa. J. Lab. & Emp. L. 817, 837–37 (2004) (“By emphasizing the

employee’s obligation to seek redress and the employer’s duty to avoid harm, the

dominant approach to constructive discharge goes to the heart of the Court’s

Ellerth/Faragher motivations and purpose.”).

If the victim could have avoided harm, no liability should be found

against the employer who had taken reasonable care, and if damages

could reasonably have been mitigated no award against a liable employer

should reward a plaintiff for what her own efforts could have avoided.

Faragher, 524 U.S. at 807, 118 S. Ct. at 2292.

66

employee can demonstrate a complaint would be fruitless, such as when

the prescribed method of recourse is through the alleged harasser or

when an employer has failed to respond to previous instances of

harassment. See, e.g., Van Meter Indus., 675 N.W.2d at 513 (“Sires was

referred to the individual who made the discriminatory promotion

decision to seek a resolution of her grievance.”).

“[A]ntidiscrimination policies are better served when the employee

and employer attack discrimination within their existing employment

relationship, rather than when the employee walks away and then later

litigates whether his employment situation was intolerable.” Poland v.

Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). We empathize with the

fact that in many cases coming forward with allegations of retaliation

may seem difficult. See Cathy Shuck, That’s It, I Quit: Returning to First

Principles in Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab.

L. 401, 429–30 (2002) (“The most frequently cited reason for failing to

report harassment is fear of negative outcomes—fear that the employee

will lose her job, not be believed, or ‘simply because it will not help [her]

situation[].’ ” (alterations in original) (quoting Theresa M. Beiner, Sex,

Science and Social Knowledge: The Implications of Social Science Research

on Imputing Liability to Employers for Sexual Harassment, 7 Wm. & Mary

J. Women & L. 273, 317 (2001))). But countervailing policy

considerations counsel us the burden placed on the employee is

reasonable. A preeminent treatise on employment law explains,

Courts generally require that the employee must give

higher levels of management the opportunity to correct an

adverse situation before quitting and claiming constructive

discharge. The evident purpose of the requirement is to

allow the employer as an entity—as opposed to, for example,

an individual (and perhaps aberrational) supervisor—to

redress the problem. However, to avoid a finding of

constructive discharge, the employer’s response must be

67

adequate; the employee need not suffer prolonged

harassment or discrimination.

Lindemann, at 21-44 to 21-45 (footnotes omitted). Moreover, an

employee can escape the requirement of coming forward by alleging there

would have been no “chance for fair treatment” in the face of a

complaint. Kimzey, 107 F.3d at 574.

Courts have consistently required “something more” for

constructive discharge claims than for ordinary discrimination or

retaliation. Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S. Ct.

2342, 2354 (2004). Constructive discharge occurs when the working

conditions deteriorate, as a result of discrimination or retaliation, “to the

point that they become ‘sufficiently extraordinary and egregious to

overcome the normal motivation of a competent, diligent, and reasonable

employee to remain on the job to earn a livelihood and to serve his or her

employer.’ ” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.

2000) (quoting Turner, 876 P.2d at 1026). These discriminatory or

retaliatory actions are best handled within the employment relationship.

Poland, 494 F.3d at 1184. The employee can recover for any additional

acts of harassment suffered until he resigns. See Green v. Brennan, 578

U.S. ___, ___, 136 S. Ct. 1769, 1782 (2016) (holding the claim of

constructive discharge does not accrue until an employee resigns).

The First, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits

consider whether the employee reasonably gave the employer an

opportunity to respond before claiming constructive discharge. See, e.g.,

EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 134 (1st Cir. 2014)

(holding employee failed to meet “reasonable person” element when her

“choice to resign was ‘grossly premature, as it was based entirely on [her]

own worst-case-scenario assumption’ ” (alteration in original));

68

Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 461 (8th Cir. 2011) (“We

have consistently recognized that an employee is not constructively

discharged if she ‘quits without giving [her] employer a reasonable

chance to work out a problem.’ ” (alteration in original) (quoting

Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1144 (8th Cir.

2007)); Aryain v. Wal-Mart Store Texas LP, 534 F.3d 473, 482 (5th Cir.

2008) (concluding employee could not recover because she “assumed the

worst and made no effort to allow Wal-Mart the opportunity to remedy

the problems she identified”); Barker v. YMCA of Racine, 18 F. App’x 394,

399 (7th Cir. 2001) (“Employees who quit without giving their employer a

reasonable chance to resolve a problem have not been constructively

discharged. Here, Ms. Barker did not try to resolve her work problems—

she merely walked away from her job without notice . . . .” (Citation

omitted.)); Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d 1351, 1357

(10th Cir. 1997) (holding no constructive discharge when plaintiffs only

waited brief time before resigning and “unreasonably refused to explore

any option short of resignation”); Kilgore v. Thompson & Brock Mgmt.,

Inc., 93 F.3d 752, 754 (11th Cir. 1996) (“A constructive discharge will

generally not be found if the employer is not given sufficient time to

remedy the situation.”); Bozé v. Branstetter, 912 F.2d 801, 804–05 (5th

Cir. 1990) (per curiam) (concluding employee was not constructively

discharged when he failed to pursue internal grievance procedures); see

also DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 501 (Mo. Ct.

App. 2013) (“Reasonableness requires an employee not to assume the

69

worst, and not to jump to conclusions too quickly.”). 17 As Lindemann

states,

The general rule is that a reasonable employee must remain

and fight discrimination on the job. Indeed, even when the

employee is faced with what he anticipates will be an

intolerable job environment, courts generally hold that the

employee should not quit precipitously, but rather should

remain to see whether those fears in fact do materialize.

Moreover, an employee cannot simply speculate that

intolerable conditions will develop, that an impending

discharge will occur, or that management will ignore the

problem.

Lindemann, at 21-41 to 21-42 (footnotes omitted).

Haskenhoff failed to establish as a matter of law that it would have

been fruitless to give HES management more time to respond. To

contrary, HES was actively engaged in responding to her complaint when

she quit. It was for the jury to decide, under proper instructions,

whether she jumped the gun, or rather, was constructively discharged. A

reasonable employee has “an obligation not to assume the worst and not

to jump to conclusions too quickly.” Brenneman, 507 F.3d at 1144

(quoting Duncan v. Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002)).

17In Missouri, a previous case held an employee did not have to allow a

reasonable opportunity to respond before claiming constructive discharge. See Pollock

v. Wetterau Food Distribution Grp., 11 S.W.3d 754, 761, 765–66 (Mo. Ct. App. 1999).

That case has been undermined by later cases holding a constructive discharge does

not occur “without giving the employer a reasonable chance to resolve the problem.”

DeWalt, 398 S.W.3d at 501; see also Gamber v. Mo. Dep’t of Health & Senior Servs., 225

S.W.3d 470, 479 (Mo. Ct. App. 2007). Other states considering whether an employee

gave the employer a reasonable opportunity to respond include West Virginia,

Nebraska, and Minnesota. Waldron v. Lyman Lumber Co., No. A10–997, 2011 WL

206175, at *3 (Minn. Ct. App. Jan. 25, 2011); Gavin v. Rogers Tech. Servs., Inc., 755

N.W.2d 47, 56 (Neb. 2008); Anderson v. First Century Fed. Credit Union, 738 N.W.2d 40,

50–51 (S.D. 2007); Ford Motor Credit Co. v. W. Va. Human Rights Comm’n, 696 S.E.2d

282, 296 (W. Va. 2010) (per curiam); see also Charles v. Regents of N.M. State Univ., No.

28,825, 2010 WL 4703506, at *1 (N.M. Ct. App. Nov. 4, 2010) (noting that New Mexico

courts consider “whether an employer had an opportunity to or attempted to resolve the

problem” as a factor when evaluating constructive discharge).

70

“The proper focus is on whether the resignation was coerced, not whether

it was simply one rational option for the employee.” Haberer, 560

N.W.2d at 575 (quoting Turner, 876 P.2d at 1026).

Instruction No. 33 omitted language requested by HES and

required under our precedent stating the employee must give the

employer “a reasonable chance to resolve the problem.” Van Meter

Indus., 675 N.W.2d at 511. That omission constituted prejudicial error.

F. Whether the Expert Testimony of Dr. Fitzgerald Should

Have Been Excluded. Because the issue is likely to arise on remand, we

will discuss whether the district court abused its discretion by allowing

the testimony of Dr. Fitzgerald. Iowa Rule of Evidence 5.702 (2014)18

provides,

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may

testify thereto in the form of an opinion or otherwise.

HES argues expert testimony by Dr. Fitzgerald should not have been

admitted because it “invade[s] the province of the court to determine the

applicable law and to instruct the jury as to that law.” In re Det. of

Palmer, 691 N.W.2d 413, 419 (Iowa 2005) (quoting Torres v. County of

Oakland, 758 F.2d 147, 150 (6th Cir. 1985)), overruled on other grounds

by Alcala, 880 N.W.2d at 708 n.3. HES specifically objects to

Dr. Fitzgerald’s testifying to “the requirements and standards for an

18Iowa Rule of Evidence 5.702 has since been amended and now reads,

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise

if the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact in

issue.

Iowa R. Evid. 5.702 (2017).

71

effective sexual harassment program and whether [HES]’s harassment

prevention and remediation program was consistent with those

standards.” HES also objects to Dr. Fitzgerald’s testimony about what a

reasonable company would do. Haskenhoff states that Dr. Fitzgerald’s

testimony provided helpful insight based on reasonable industry

standards and did not delve into instruction upon the law.

HES’s challenge to Dr. Fitzgerald’s testimony focused on the

linkage to erroneous jury instructions. Because we are reversing and

ordering a new trial based on the instructional errors, the admissibility of

her testimony will be in a somewhat different context on remand. We

review the general parameters of expert testimony.

“An opinion is not objectionable just because it embraces an

ultimate issue.” Iowa R. Evid. 5.704 (2017). We favor a “liberal view on

the admissibility of expert testimony.” Ranes, 778 N.W.2d at 685.

Whether an opinion should be excluded on the basis that it is couched in

legal terms “depends on ‘whether the terms used by the witness have a

separate, distinct and specialized meaning in the law different from that

present in the vernacular.’ ” In re Det. of Palmer, 691 N.W.2d at 420

(quoting Torres, 758 F.2d at 151). If so, the testimony should be

excluded. Id. For example, questions such as whether a defendant was

negligent or not negligent are improper because “[e]xperts are not to state

opinions as to legal standards.” Iowa R. Evid. [5.]704 committee cmt.

(1983).

The district court allowed Dr. Fitzgerald’s testimony, finding she

was “qualified as an expert on the subjects presented, as provided by

Iowa Rule of Evidence 5.702.” Dr. Fitzgerald testified she was hired for

two reasons: (1) to speak with Haskenhoff and evaluate whether she

displayed typical victim behavior in response to harassment, and (2) to

72

examine HES’s policies and procedures on sexual harassment and opine

whether they met accepted standards in the field of human resources.

She opined that Haskenhoff suffered from major depressive disorder and

posttraumatic stress disorder, described these conditions for the jury,

and stated why they may be caused by harassing behavior. She testified

about whether this was common for victims of harassment. She also

testified about what a “reasonable” company should do to prevent sexual

harassment according to human resources standards and whether HES

conformed to those standards. She skirted close to the line prohibiting

testimony on legal conclusions:

A. . . . [T]here’s a distinction between—that I should make

here—between violation of a company’s policy and violation

of the law.

Because they’re not—although there’s a great deal of

overlap, they’re not always exactly the same. So there are

things that can violate a company’s policy and not violate the

law. . . .

....

Q. Okay. “The standard of professional practice says

an investigation,” and then you set out steps a competent

investigator would take in order to conduct a real

investigation into this or any other matter. And what are

those steps? A. Well, I probably should have said “should”

instead of must, because it’s not the law or anything. But

the common practice recommendation . . . .

....

Q. And your testimony doesn’t purport to tell the

jurors what the law is proscribing sex harassment, does it?

A. No, I do not speak to legal issues.

Testimony that particular conduct violated the ICRA clearly would be an

inadmissible legal conclusion.

Expert testimony on the standard of care or standard of practice is

generally permitted in negligence actions. See Alcala, 880 N.W.2d at 709

(collecting cases requiring evidence of an employer’s standard of care and

73

its breach to recover under a negligent-training theory); Oswald v.

LeGrand, 453 N.W.2d 634, 635 (Iowa 1990) (noting that in a professional

negligence action, “[o]rdinarily, evidence of the applicable standard of

care—and its breach—must be furnished by an expert”); Brandt v.

Richter, 159 N.W.2d 471, 474 (Iowa 1968) (allowing testimony of farm

safety expert and discussing precedent rejecting argument such

testimony improperly altered the standard of care). But expert testimony

as to a legal conclusion is inadmissible in an ordinary negligence action.

See, e.g., Bell v. Cmty. Ambulance Serv. Agency, 579 N.W.2d 330, 338

(Iowa 1998) (affirming exclusion of opinion testimony of law enforcement

trainer that ambulance driver’s “actions were highly dangerous and likely

to cause injury”); Terrell v. Reinecker, 482 N.W.2d 428, 430 (Iowa 1992)

(holding it was reversible error to allow investigating police officer to

testify to the legal conclusion that plaintiff “failed to yield the right-of-

way”). We have not previously decided where the line is drawn in a

hostile-work-environment case. We conclude the district court did not

abuse its discretion in allowing Dr. Fitzgerald’s testimony on the record

made at the first trial.

IV. Disposition.

For those reasons, we reverse the district court’s ruling denying

HES’s motion for new trial, vacate the judgments for plaintiff, and

remand the case for a new trial consistent with this opinion.

DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED FOR NEW TRIAL.

Mansfield and Zager, JJ., join this opinion. Cady, C.J., files a

concurrence in part and dissent in part. Appel, J. files a separate

concurrence in part and dissent in part in which Wiggins and Hecht, JJ.,

join and Cady, C.J., joins in part.

74

#15–0574, Haskenhoff v. Homeland Energy Solutions, LLC

CADY, Chief Justice (concurring in part and dissenting in part).

I concur in the result reached in the opinion authored by Justice

Waterman. I agree the jury verdict must be reversed and a new trial

must be granted. I write separately because I do not agree with the

result or reasoning on all the issues addressed in the opinion by Justice

Waterman. As to those issues with which I disagree, I join in the opinion

by Justice Appel.

I. Direct Negligence Claim.

The two opinions in this case both hold that a plaintiff may pursue

a hostile-work-environment claim against an employer under the Iowa

Civil Rights Act based on supervisor harassment under a legal theory of

either vicarious liability or negligence. I concur. The two opinions also

hold an employer cannot assert the affirmative defense recognized for

vicarious liability claims in Faragher v. City of Boca Raton, 524 U.S. 775,

807–08, 118 S. Ct. 2275, 2292–93 (1998), and Burlington Industries, Inc.

v. Ellerth, 524 U.S. 742, 764–65, 118 S. Ct. 2257, 2270 (1998), when

defending a negligence action. To this, I also concur. The dispute,

however, is whether the district court erred in failing to instruct the jury

that the employee must prove the employer failed to take prompt and

appropriate remedial action to end the harassment. I conclude the

district court erred in failing to integrate this concept into its marshaling

instruction.

It is a general rule of law that an employer is liable for negligently

creating or continuing a hostile work environment. See Vance v. Ball

State Univ., 570 U.S ___, ___, 133 S. Ct. 2434, 2452 (2013). This is a

correct statement of law, but far too general to be used as a marshaling

instruction for a claim of employer negligence based on sexual

75

harassment by a supervisor. Negligence in continuing a hostile work

environment is required to be analyzed within the context of whether or

not the employer failed to take reasonable remedial action within a

reasonable period of time. Boyle v. Alum-Line, Inc., 710 N.W.2d 741,

747–48 (Iowa 2006). This was the essence of Haskenhoff’s claim based

on supervisor harassment. When the plaintiff asserts a vicarious liability

claim, the essential analysis is presented as an affirmative defense. See

Farmland Foods, Inc. v. Dubuque Human Ri

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