                    IN THE COURT OF APPEALS OF IOWA

                                 No. 16-0560
                             Filed June 21, 2017


BRITNEY TIBODEAU,
     Plaintiff-Appellee,

vs.

CDI, LLC,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hancock County, Rustin T.

Davenport, Judge.



      Defendant appeals from judgment in a claim arising under the Iowa Civil

Rights Act, Iowa Code chapter 216 (2013). AFFIRMED AND REMANDED.




      David H. Luginbill and Lindsay A. Vaught of Ahlers & Cooney, P.C., Des

Moines, for appellant.

      Sarah A. Reindl, of Reindl Law Firm, Mason City, for appellee.



      Heard by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       Plaintiff Brittney Tibodeau sued her former employer, CDI, LLC

(hereinafter “CDI”), and her former supervisor at CDI, David Monoit, for sex

discrimination, sexual harassment, and retaliation in violation of the Iowa Civil

Rights Act, Iowa Code chapter 216 (2013). The jury found Tibodeau proved her

claims against CDI but did not prove her claims against Monoit.         The jury

awarded Tibodeau back pay and past and future emotional distress damages.

The district court awarded Tibodeau front pay and attorney’s fees. CDI timely

filed this appeal, raising several claims of error.

                                           I.

       The jury could have found the following.       Tibodeau worked at CDI in

Forest City in 2013. During the summer of that year, Tibodeau took leave for a

medical issue. While on leave, Tibodeau attempted suicide. She was treated for

depression and anxiety and returned to work.

       The workplace was hostile. Tibodeau’s coworkers discussed her body in

offensive terms, called her derogatory names, started a rumor she was having an

affair with another employee, looked at a nude photo of her, displayed

provocative photos of women throughout the work area, made phallic shapes out

of tape, made humping motions behind her when she bent over, discussed the

intimate hygiene practices of a female coworker, made sexually suggestive

jokes, discussed pornography, made comments about raping women and

children, and threw balled-up tape at Tibodeau’s breasts and backside. As a

result of this conduct, Tibodeau terminated her employment with CDI after her
                                          3


boyfriend, who also worked at CDI, was fired. The jury found Tibodeau was

constructively discharged.

                                          II.

                                          A.

       For its first claim of error, CDI contends the district court erred in denying

CDI’s motion for directed verdict on CDI’s statute of limitations defense. Our

review is for the correction of legal error. See James v. Burlington N., Inc., 587

N.W.2d 462, 464 (Iowa 1998).

       To prevail on its statute-of-limitations defense, CDI was required to prove

the relevant statute of limitations lapsed prior to the initiation of the action and no

savings statute applied. See Furnald v. Hughes, 804 N.W.2d 273, 275–76 (Iowa

2011) (discussing the purpose of statutes of limitation and savings statutes).

       The relevant limitation periods are set forth in the Iowa Civil Rights Act.

As a prerequisite to pursuing a claim arising under the act, “[a] person claiming to

be aggrieved by an unfair or discriminatory practice must initially seek an

administrative relief by filing a complaint with the [Iowa Civil Rights Commission]

in accordance with section 216.15.” Iowa Code § 216.16(1). Section 216.15

provides the complaint must be filed “within three hundred days after the alleged

discriminatory or unfair practice occurred.”       Iowa Code § 216.15(13).        The

complainant may seek relief in the district court upon receiving an administrative

release, commonly called a right-to-sue letter, from the commission. See Iowa

Code § 216.16(2). The complainant must commence an action in the district

court “within ninety days after issuance by the commission of a release”

otherwise the action “is barred.” Iowa Code § 216.16(4). In this case, Tibodeau
                                          4


timely filed a complaint with the commission. She received an administrative

release on July 31, 2014. She filed her petition in Winnebago County on October

7, 2014, within the ninety-day filing period.

       After Tibodeau filed her action in Winnebago County, CDI filed a motion

for a change of venue, contending the proper venue was in Hancock County. On

October 31, the district court granted the motion and transferred the case to

Hancock County and ordered Tibodeau to pay twenty dollars in costs to CDI.

See Iowa R. Civ. P. 1.808(1) (“An action brought in the wrong county may be

prosecuted there until termination, unless a defendant, before answer, moves for

change to the proper county. Thereupon the court shall order the change at

plaintiff’s costs, which may include reasonable compensation for defendant’s

trouble and expense, including attorney’s fees, in attending in the wrong

county.”). The costs were due within twenty days of the district court’s order.

See Iowa R. Civ. P. 1.808(2) (“If all such costs are not paid within [twenty] days

of the transfer order, the action shall be dismissed.”). Tibodeau did not pay the

costs within twenty days of the district court’s order. On December 2, CDI filed a

motion to dismiss the action due to Tibodeau’s failure to pay the costs within the

twenty-day period. On January 30, 2015, the district court granted the motion,

dismissed the action in Winnebago County, and immediately reinstated the

action in Hancock County because the costs had been paid by that time,

although not timely paid. See Iowa R. Civ. P. 1.808(2) (“Upon payment of the

costs, the clerk shall forthwith transmit to the proper court the transcript of the

proceedings, with any original papers, an authenticated copy of which shall be
                                              5


retained. The case shall be docketed in the second court without fee and shall

proceed.”).

       CDI contends this action is barred because the action was dismissed and

then reinstated outside the ninety-day period of limitation. Tibodeau contends

the reinstated action is merely a continuation of the first and is thus timely filed.

As the parties have framed the argument, at issue is our savings statute, Iowa

Code section 614.10, which states “[i]f, after the commencement of an action, the

plaintiff, for any cause except negligence in its prosecution, fails therein, and a

new one is brought within six months thereafter, the second shall, for the

purposes herein contemplated, be held a continuation of the first.”1 “The purpose

of a savings statute is to prevent minor or technical mistakes from precluding a

plaintiff from obtaining his day in court and having his claim decided on the

merits.” Furnald, 804 N.W.2d at 276.

       Under the circumstances, we cannot conclude Tibodeau was negligent in

her prosecution of her action. Tibodeau timely filed her administrative complaint,

obtained her administrative release, and timely filed her action in the district

court. Tibodeau was unsuccessful in resisting the motion for change of venue

and should have timely paid the costs. Tibodeau’s counsel explained the costs

were not timely paid because there were no instructions on how to make the

1
  We question whether the statute of limitations and the savings statute are truly at issue.
The savings statute is applicable where a prior action is dismissed and “a new one” is
brought within six months after dismissal. See, e.g., Veatch v. Bartels Lutheran Home,
804 N.W.2d 530, 536 (Iowa Ct. App. 2011) (discussing meaning of “a new one” within
the meaning of Iowa Code section 614.10). When applicable, the statute makes the
“second” action a continuation of the first. Here, the district court dismissed the plaintiff’s
action but immediately “reinstated” the action. To “reinstate” means to “place again in a
former state or position.” Reinstate, Black’s Law Dictionary (10th ed. 2014). Tibodeau’s
action thus does not appear to be “a new one” or “second” action within the meaning of
the statute but rather a single, continuous action.
                                         6


payment to the clerk of court using the EDMS system, which had recently been

implemented in both counties. Tibodeau’s counsel called the county clerk for

assistance. The county clerk could not determine the proper payment procedure

so counsel simply mailed twenty dollars to CDI’s counsel’s office. The payment

admittedly was not timely. However, the concept of a savings statute

       generally seems clear enough. For example, substantial argument
       can be made that a timely but highly contested claim that is
       ultimately dismissed for lack of subject matter jurisdiction, personal
       jurisdiction, venue, or for some arcane pleading or other procedural
       defect, should not leave a plaintiff without a day in court because of
       the expiration during the pendency of the action by the statute of
       limitations.

 Id. The district court correctly determined that the statute of limitations did not

bar this action.

                                        B.

       CDI claims the district court erred in excluding certain evidence.

Specifically, CDI contends the district court erred when it refused to allow CDI to

present evidence Tibodeau used marijuana while employed with CDI.               CDI

preserved error by making an offer of proof. See In re Marriage of Daniels, 568

N.W.2d 51, 55 n.2 (Iowa Ct. App. 1997). We review the exclusion of evidence for

an abuse of discretion. Shawhan v. Polk Cty., 420 N.W.2d 808, 809 (Iowa 1988).

“An abuse of discretion occurs when the trial court exercises its discretion ‘on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.’”

State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (quoting State v. Maghee,

573 N.W.2d 1, 5 (Iowa 1997)). “A ground or reason is untenable when it is not

supported by substantial evidence or when it is based on an erroneous
                                          7

application of the law.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa

2000).

         The district court concluded the evidence was relevant in two respects.

Arguably, Tibodeau’s drug use impacted her perception of workplace conduct.

Second, Tibodeau’s nurse practitioner, Rhonda Cooper, stated marijuana use

would decrease the effectiveness of Tibodeau’s treatment for depression and

anxiety. Tibodeau’s marijuana use was thus marginally relevant to damages

because it demonstrated a failure to mitigate her depression and anxiety.

         The district court also concluded the probative value of the evidence

would be substantially outweighed by unfair prejudice. See Iowa R. Evid. 5.403.

As a general rule, evidence of drug use, in a case unrelated to drugs, will likely

result in unfair prejudice.     See Shawhan, 420 N.W.2d at 810.            Generally,

admitting this type of evidence increases the likelihood that a jury will rule against

a drug-using party because that person is “bad.” Id.

         As a general proposition “[a]dmission is justified where there is a showing

the use of an illegal drug has relation to the incident in question and/or where it is

relevant to the damage issue.” Ward v. Loomis Bros., 532 N.W.2d 807, 811

(Iowa Ct. App. 1995). While this court may have decided the issue differently

than the district court, it is not for this court to substitute its judgment for the

district court. Instead, we are to determine whether the district court abused its

discretion in excluding the evidence. The district court’s exclusion of Tibodeau’s

marijuana use while employed with CDI was done after a careful balancing of the

probative value of the evidence and its potentially unfair prejudicial effect. The

district court’s rationale was consistent with the general skepticism regarding the
                                        8

use of evidence of drug use in non-drug cases. See Shawhan, 420 N.W.2d at

810 (determining that evidence of past drug use could not be used to determine

damages for future pain and suffering because it is too prejudicial); Putnam v.

Kalber, No. 12-1040, 2013 WL 1223648, at *3 (Iowa Ct. App. Mar. 27, 2013)

(determining that a positive drug test showing driver used marijuana within the

previous thirty days was too prejudicial); Bellville v. Farm Bureau Mut. Ins. Co.,

No. 02-0263, 2003 WL 1968847, at *4 (Iowa Ct. App. Apr. 30, 2003) (determining

that evidence of chronic drug use is too prejudicial to be admitted, even when

determining damages according to life expectancy). We acknowledge the merit

in CDI’s central point—the prejudicial effect, if any, of the evidence would have

been negligible because there was other evidence showing Tibodeau used

marijuana before and after her employment with CDI. However, CDI was not

prevented from presenting a vigorous challenge regarding damages, introducing

evidence that marijuana can negate the positive impact of prescribed

medications and that Tibodeau often used marijuana after her employment with

CDI terminated.

      Ultimately, “[t]his court should reverse only when justice would not be

served by allowing the trial court judgment to stand.” Shawhan, 420 N.W.2d at

810. We cannot conclude justice requires reversal under the circumstances.

                                       C.

      CDI contends the district court should have granted its motion for mistrial

or new trial based on Tibodeau’s counsel’s cumulative misconduct. We review

the district court’s ruling on a motion for mistrial for an abuse of discretion.

Stover v. Lakeland Square Owners Ass’n, 434 N.W.2d 866, 873 (Iowa 1989).
                                            9


“We give extremely broad, though not unlimited, discretion to a trial court on

motions for mistrial and new trial.” Id. at 874 (citing Yeager v. Durflinger, 280

N.W.2d 1, 7–8 (Iowa 1979)).          “In order to show an abuse of discretion, one

generally must show that the court exercised its discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” Rosenberger

Enters., Inc. v. Ins. Serv. Corp. of Iowa, 541 N.W.2d 904, 906–07 (Iowa Ct. App.

1995) (citing State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976)).

          “A new trial is required for improper conduct by counsel if it appears that

prejudice resulted or a different result would have been probable but for any

misconduct.” Id. (citing Tratchel v. Essex Grp., Inc., 452 N.W.2d 171, 178 (Iowa

1990)). District courts are best suited to determine if misconduct is prejudicial.

Id.   We consider several factors when determining if misconduct resulted in

prejudice. Those factors include

          [(1)] the severity and pervasiveness of the misconduct, [(2)] the
          significance of the misconduct to the central issues in the case, [(3)]
          the strength of the [plaintiff’s] evidence, [(4)] the use of cautionary
          instructions or other curative measures, and [(5)] the extent to
          which the [objecting party] invited the improper conduct.

State v. Ayabarreno, No. 13-0582, 2014 WL 465761, at *4 (Iowa Ct. App. Feb. 5,

2014).

          The first claimed instance of misconduct was Tibodeau’s counsel’s use of

a golden rule argument during her closing summation. “A ‘golden rule’ argument

is where counsel asks the jurors to put themselves in the place of a party or

victim.     Courts frown upon this type of appeal to the emotions or personal

interests of the jurors.” Id. “These rules ensure the case is decided solely on the

evidence.” State v. Musser, 721 N.W.2d 734, 755 (Iowa 2006). CDI’s counsel
                                          10


objected to the golden rule argument. The district court sustained the objection,

stating “[c]ounsel shall refrain from having the jurors put themselves in the place

of—of a—either party.” The district court then took curative measures, reminding

the jury that statements made during closing arguments are not evidence and

instructing the jurors to rely on their recollection of the evidence.

       The second claimed instance of misconduct was Tibodeau’s counsel

misstated the evidence in the record during closing summation when she stated

two CDI employees directed certain profane comments toward Tibodeau.

Review of the record reveals Tibodeau’s counsel actually only discussed a single

profane phrase. Regardless, counsel’s statements were not supported by the

record. “This irrelevant fact was outside the record in this case and improper.”

State v. Graves, 668 N.W.2d 860, 875 (Iowa 2003).

       The third claim of misconduct was Tibodeau’s counsel reference to

another sexual harassment complaint at CDI but involving another person. CDI

contends Tibodeau’s counsel violated an order in limine. The order in limine

prohibited counsel from referencing a complaint CDI employee Sequoyah

Turnmeyer filed against her coworker Larry Eenhuis.                     During opening

statements, counsel referenced Turnmeyer’s complaint, but CDI did not object.

CDI objected to counsel asking Eenhuis if Turnmeyer complained Eenhuis

rubbed her back. The objection was sustained, and the question was withdrawn.

During closing arguments, Tibodeau’s counsel argued Eenhuis was unaware of

Turnmeyer’s complaint regarding his conduct. CDI objected to the statement,

arguing the information was not in the record. However, the evidence was in the
                                         11


record; Eenhuis testified he was unaware of Sequoyah’s complaint until his

deposition.

       CDI argues the cumulative effect of these actions inflamed the jury and

resulted in excessive damages.          We disagree.     Here, application of the

Ayabarreno factors does not indicate the district court abused its considerable

discretion in denying the motion. The conduct was not pervasive or severe within

the context of a five-day jury trial. See Ayabarreno, 2014 WL 465761, at *4.

Indeed, some of the purported misconduct was not misconduct at all.            The

misconduct was not of great importance to the central issues in the case. The

district court provided the jury with appropriate instruction that counsel’s closing

argument was not evidence both in the jury instructions and again during closing

argument in response to counsel’s golden rule violation. See id. Finally, the

plaintiff’s evidence was very strong.

       “Before a new trial will be granted for misconduct in argument it must

appear prejudice resulted or a different result could have been probable but for

such conduct.” Andrews v. Struble, 178 N.W.2d 391, 402 (Iowa 1970) (quoting

Rasmussen v. Thingles, 174 N.W.2d 384, 391 (Iowa 1970)). The district court

was in the best position to determine if misconduct was prejudicial.           See

Rosenberger Enters., Inc., 541 N.W.2d at 906–07. We give great deference to

the district court’s denial of motion for mistrial and motion for new trial. CDI

suffered no prejudice from these claimed instances of misconduct.

                                         D.

       CDI argues the district court erred in submitting an “eggshell plaintiff”

instruction to the jury.   CDI further argues the district court erred in also
                                        12


submitting an aggravating-condition instruction to the jury without an adequate

explanation of how the jury was to apply both instructions in the case.

      “We review a trial court’s instructions for correction of legal error.” Waits

v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). “When considering

whether evidentiary support for an instruction exists, we give the evidence the

most favorable construction it will bear.” Hughes v. Massey-Ferguson, Inc., 522

N.W.2d 294, 295 (Iowa 1994) (citing Sandhorst v. Mauk’s Transfer, Inc., 252

N.W.2d 393, 399 (Iowa 1977)). “As long as a requested instruction correctly

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

instructions, the court must give the requested instruction.” Vaughn v. Must, Inc.,

542 N.W.2d 533, 539 (Iowa 1996) (citing Adam v. T.I.P. Rural Elec. Corp., 271

N.W.2d 896, 901 (Iowa 1978); Turner v. Jones, 215 N.W.2d 289, 291–292 (Iowa

1974)).

      We first address CDI’s challenge to the “eggshell plaintiff” instruction. As

a general rule, the instruction is applicable “when the pain or disability arguably

caused by another condition arises after the injury caused by the defendant’s

fault has lighted up or exacerbated the prior condition.” Waits, 572 N.W.2d at

577. The instruction provided:

      If the plaintiff, Britney Tibodeau, had health conditions before these
      incidents, making her more susceptible to injury than a person in
      normal health, then the defendant is responsible for all injuries and
      damages which are experienced by the plaintiff caused by the
      actions of the defendant, even though the injuries claimed produce
      a greater injury than those which might have been experienced by
      a normal person under the same circumstances.

      The parties agree Tibodeau suffered from depression before the alleged

harassment began. CDI claims there was no evidence Tibodeau’s depression
                                         13


was asymptomatic or dormant when she returned from her leave. We disagree.

The district court noted that applying the concept of a dormant condition to a

mental-health condition is difficult.     The court determined, however, the

instruction was appropriate because Tibodeau was able to resume her work

without any restriction. In addition, witnesses testified Tibodeau had recovered

from her depression during her leave and prior to returning to work. Tibodeau’s

former boyfriend testified Tibodeau was ready to go back to work and was tired

of being at home. Tibodeau testified she had recovered. Although CDI may find

the evidence not credible, we give the evidence the most favorable construction it

will bear.     Under this standard, there was sufficient evidence to warrant the

instruction.

       CDI also argues the district court erred in submitting an aggravating-

condition instruction to the jury without an explanation of how the jury was to

apply this instruction in combination with the eggshell plaintiff instruction. The

instruction provided as follows:

       If you find Plaintiff had mental health conditions before this incident
       and this condition was aggravated by this incident causing further
       suffering then she is entitled to recover damages caused by the
       aggravation. She is not entitled to recover for any physical ailment
       or disability which existed before this incident or for any injuries or
       damages which she now has which were not caused by the
       defendant’s actions.

CDI is correct that it was error to submit this instruction without an additional

explanation.     Waits established the need for clarifying language when both

aggravation and eggshell instructions are submitted to a jury. 572 N.W.2d at

578. But we need not discuss the issue any further. As noted by the district

court in its denial of CDI’s motion for new trial, CDI never objected to this
                                        14


instruction, generally, or requested the additional explanatory language required

by Waits be added to the instruction, specifically. We agree with the district court

that the error was not preserved.     See Iowa R. Civ. P. 1.924 (providing “all

objections to giving or failing to give any instruction must be made in writing or

dictated into the record, out of the jury’s presence, specifying the matter objected

to and one what grounds” and “[n]o other grounds or objections shall be asserted

thereafter, or considered on appeal”); Smith v. Air Feeds, Inc., 556 N.W.2d 160,

164 (Iowa Ct. App. 1996) (holding party failed to preserve claim the cumulative

effect of instructions was confusing where the argument was not made to the

district court).

                                        E.

       Finally, CDI claims the jury improperly considered CDI’s possible

insurance coverage when determining damages. The district court denied this

claim for relief.

       The refusal to grant a new trial based on evidence of juror misconduct is

reviewed for an abuse of discretion. State v. Jones, 511 N.W.2d 400, 409 (Iowa

1993). “An abuse of discretion occurs when the trial court exercises its discretion

‘on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.’” State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015) (quoting

Rodriquez, 636 N.W.2d at 239). “A trial court has broad discretion in determining

whether claimed misconduct on the part of a juror justifies a new trial.” Jones,

511 N.W.2d at 409 (citing State v. Fedderson, 230 N.W.2d 501, 514 (Iowa

1975)). “[J]uror affidavits may be used to impeach a verdict if external pressures

affected that verdict, but may not use such affidavits to impeach a verdict based
                                          15

on internal workings of a jury.” Lund v. McEnerney, 495 N.W.2d 730, 733 (Iowa

1993).

         CDI’s attempt to impeach the verdict on the basis of juror misconduct fails.

CDI submitted no juror affidavit in support of its claims. Instead, it submitted an

affidavit from a private investigator, summarizing his conversations with two

jurors. CDI also submitted an affidavit from an individual, Mark Newman, stating

he spoke to the private investigator, who spoke with two additional jurors and

summarized the private investigator’s conversations with the jurors.        Further,

CDI’s complaints relate to the jury’s internal workings and not to external

conduct. With limited exceptions not relevant here, we do not inquire into the

deliberations of the jury.    CDI conceded or essentially conceded during oral

argument this claim is without merit. The district court did not abuse its discretion

when it refused to set an evidentiary hearing or order a new trial on the ground of

juror misconduct.

                                          III.

         For the foregoing reasons, we affirm the judgment of the district court.

Tibodeau has requested appellate attorney fees.          We grant the request for

appellate attorney fees. We remand this matter to the district court to determine

the amount of the fee award.

         AFFIRMED AND REMANDED.
