                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1454
                             Filed January 10, 2018


CHRISTINA HYTEN,
     Plaintiff-Appellant,

vs.

HNI CORPORATION and THE HON COMPANY L.L.C.,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Nancy S. Tabor,

Judge.



      A litigant appeals several rulings on the exclusion of evidence. AFFIRMED.




      Anthony J. Bribriesco, Andrew W. Bribriesco, and William J. Bribriesco of

Bribriesco Law Firm P.L.L.C., Bettendorf, for appellant.

      David T. Bower and Frank B. Harty of Nyemaster Goode, P.C., Des Moines,

for appellees.



      Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. Tabor, J.,

takes no part.
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MCDONALD, Judge.

       The plaintiff Christina Hyten appeals from an adverse judgment entered

against her following a jury trial on her claim she was wrongfully discharged for

seeking workers’ compensation benefits.        On appeal, she challenges three

discretionary evidentiary rulings.   She contends the district court abused its

discretion in excluding evidence concerning the following: (1) the delay in receipt

of workers’ compensation benefits; (2) the safety of her work assignment following

her date of injury; and (3) the company’s waiver of a notice defense in the

underlying workers’ compensation proceeding.

                                         I.

       The HON Company, L.L.C., is a subsidiary of HNI Corporation. Hyten

commenced work at HON’s facility through a temporary staffing agency in March

2013. HON hired her directly on July 1, 2013. Hyten worked at an oak laminate

factory as a work cell operator doing various assembly tasks in the flat pack

department. Hyten worked second shift from 3:00 p.m. until 11:00 p.m. On July

13, 2013, Hyten allegedly sustained a carpal tunnel injury arising out of her

employment. She claims she reported the injury to her Production Team Leader,

Rodney Holliday, the same day. He directed her to complete a “HON First Aid

Form.” Hyten testified she filled out the form and submitted it. Hyten did not obtain

the signature of a supervisor as dictated by company policy. Hyten testified no

action was taken on her report.

       Hyten testified she told others of her injury after the first aid form was not

addressed, but she admitted she did not escalate her unaddressed report as

required by company policy. Several weeks after submitting the first aid form,
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Hyten raised the issue again with Holliday. He recommended some stretches and

gave her a splint to wear. She testified she told Production Team Leaders Jim

Gibson and Brandon Mathis of the injury. She testified Mathis told her she was

“replaceable” if she could not do the job. From the time Hyten filled out the first

aid form until January 2014, Hyten did not escalate her report beyond these

identified Production Team Leaders.

       Hyten’s concerns regarding her injury were addressed in January 2014. At

that time, Hyten requested she be moved from second shift to first shift for family

reasons. Her request was granted. Hyten then reported her prior injury to her new

supervisor, Chad Reich. Hyten filled out a first aid form and obtained Reich’s

signature. At the same time, Reich issued Hyten a “record of coaching” for not

immediately notifying him of the injury when she changed shifts. Hyten filed a

claim for workers’ compensation benefits. She treated with a physician at the end

of the month. After several medical appointments, she scheduled a surgery to be

performed in March. Hyten testified that, around this time, the factory manager

approached her in the parking lot and asked, “When are you going to quit milking

it and get back on the line?”

       Throughout her employment, Hyten had attendance issues. The company

had a written attendance policy. The policy gave each employee nine attendance

credits on an annual basis commencing with the date of employment with two “free

passes” granted at the beginning of each year. Each unexcused absence counted

as a credit. Each tardy or early leave of two hours or more counted as a credit.

Each tardy or early leave of less than two hours counted as a half credit. The

policy provided the company would terminate employment when the employee
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used all nine credits. Hyten did not and does not dispute she used her free passes

and nine credits between July 1, 2013 to March 6, 2014.           On March 7, the

company’s Member and Community Relations Manager, a human resources

position, met with Hyten’s Group Leader and decided to terminate Hyten’s

employment for violation of the attendance policy.       Hyten’s employment was

terminated on the same date.

       Hyten filed this suit against HON and HNI in October 2014. She claimed

the companies terminated her employment in violation of public policy for seeking

workers’ compensation benefits. The matter was tried to a jury over the course of

six days. After six days of testimony, having heard tens of witnesses, the jury

returned a verdict in favor of the employer.

                                         II.

       The issues raised on appeal are limited. Hyten contends the district court

abused its discretion in excluding evidence concerning the following: (1) the delay

in receipt of workers’ compensation benefits; (2) the safety of her work assignment

following her date of injury; and (3) the company’s waiver of a notice defense in

the underlying workers’ compensation proceeding. This court reviews the district

court’s evidentiary rulings for an abuse of discretion.        See Hall v. Jennie

Edmundson Memorial Hosp., 812 N.W.2d 681, 685 (Iowa 2012). “We afford the

district court wide discretion in evidentiary matters . . . .” Jensen v. Sattler, 696

N.W.2d 582, 589 (Iowa 2005). An abuse of discretion occurs when a ruling is

“clearly untenable or [based on] unreasonable grounds.” Id. “A ground or reason

is untenable when it is not supported by substantial evidence or when it is based

on an erroneous application of the law.” Mercer v. Pittway Corp., 616 N.W.2d 602,
                                          5


612 (Iowa 2000). In conducting our review of the district court’s evidentiary rulings,

“[e]rror may not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected.” Iowa R. Evid. 5.103(a); Scott v.

Dutton-Lainson Co., 774 N.W.2d 501, 503 (Iowa 2009).              Thus, reversal is

appropriate only where “exclusion of the evidence affected a party’s substantial

rights.” Scott, 774 N.W.2d at 503.

       Evidence is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Iowa R. Evid. 5.401.         Even if

evidence is relevant, it may be excluded if “its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Iowa R. Evid. 5.403. “Weighing probative

value against prejudicial effect ‘is not an exact science,’ so ‘we give a great deal

of leeway to the trial judge who must make this judgment call.’” State v. Putman,

848 N.W.2d 1, 10 (Iowa 2014) (citation omitted). The district court concluded the

evidence was not relevant, but even if it were, the evidence’s probative value was

substantially outweighed by rule 5.403 considerations.

       Under our highly deferential review, we find the district court did not abuse

its wide discretion in excluding the proffered evidence. With respect to the first

and third categories of evidence regarding delay and notice, the plaintiff asserts in

her brief that she made an offer of proof regarding these two issues. “The purpose

of an offer of proof is to give the district court a more adequate basis for its

evidentiary ruling and to provide a meaningful record for appellate review.” State
                                         6

v. Buchanan, 800 N.W.2d 743, 752 (Iowa Ct. App. 2011). We have reviewed

Hyten’s offer of proof, and we find it was severely lacking. Hyten’s offer of proof

consisted of certain interrogatory answers and the testimony of HNI’s former risk

manager, Greg Brown. Mr. Brown testified that he did not know anything about

the case and was not involved in answering the interrogatories.                 The

interrogatories themselves shed little light on the issue. We cannot conclude the

district court abused its discretion in disallowing the evidence when the plaintiff’s

offer of proof on the issues was wholly inadequate. See, e.g., State v. Ritenour,

No. 15-0038, 2016 WL 3269551, at *6 (Iowa Ct. App. June 15, 2016) (holding the

district court did not abuse its discretion in disallowing evidence “[g]iven the

minimal information provided in the offer of proof”); State v. Wood, No. 11-1124,

2012 WL 3200868, at *3 (Iowa Ct. App. Aug. 8, 2012) (“In this case, the evidence

presented in the offers of proof had such a little amount of relevance, if any, that

we have no problem in finding the district court did not abuse its discretion in

determining that any probative value was substantially outweighed by the danger

of confusion of the issues and misleading the jury.”).

       Independently, Hyten has failed to demonstrate her substantial rights were

affected by the exclusion of any of the evidence. See Scott, 774 N.W.2d at 503.

As noted above, the offer of proof was wholly deficient with respect to two

categories of evidence. With respect to the category of evidence regarding Hyten’s

change in work assignment after reporting her injury, Hyten was able to testify

regarding the retaliatory nature of the assignment. The district court allowed her

to testify the assignment was discriminatory and unique to her. Contrary to Hyten’s

assertions, the district court did not allow HON to present evidence on the safety
                                          7


conditions related to Hyten’s work assignment. Hyten’s evidence would have been

merely cumulative to her testimony. See, e.g., Thompson v. City of Des Moines,

564 N.W.2d 839, 846 (Iowa 1997) (finding no abuse of discretion in disallowing

evidence where the evidence was cumulative).

       Finally, we note the only issue in this case was whether the employer

terminated Hyten’s employment in retaliation for her seeking workers’

compensation benefits. Hyten does not really dispute that the company terminated

her employment pursuant to an established attendance policy. See Weinzetl v.

Ruan Single Source Transp. Co., 587 N.W.2d 809, 813 (Iowa 1998) (holding that

termination of employment for absenteeism, even when absences are caused by

work-related injury, is not in violation of public policy). Hyten’s claimed evidentiary

errors are thus a mere subterfuge. The defect in this case was the lack of any

evidence, even considering the excluded evidence, casting doubt on the

employer’s legitimate reason for the termination of employment. See, e.g., Six v.

Des Moines Cold Storage, No. 09-0539, 2010 WL 1577464, at *3 (Iowa Ct. App.

Apr. 21, 2010) (holding employer was entitled to judgment as a matter of law where

employee was fired for absenteeism); Weinzetl, 587 N.W.2d at 813 (holding

employer was entitled to judgment as a matter of law where it was not disputed

employee was terminated due to absenteeism). The jury sussed this out. We will

not disturb the jury’s verdict. “The exclusion of evidence which if received, could

not have changed the result, is not prejudicial error.” Durant Elevator Co. v. S. J.

Hoffman & Sons, 145 N.W.2d 25, 27 (Iowa 1966).
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                                 III.

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

AFFIRMED.
