                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0627
                                Filed April 22, 2015


DOROTHEA POLK,
    Plaintiff-Appellee,

vs.

DEPARTMENT OF ADMINISTRATIVE SERVICES and IOWA WORKFORCE
DEVELOPMENT,
     Defendants-Appellants.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Brad McCall, Judge.




       The defendants appeal following a jury verdict in favor of Dorothea Polk

on her claim that she was fired from her employment in retaliation for filing a civil

rights complaint concerning race discrimination. AFFIRMED.




       Jeffrey S. Thompson, Solicitor General, and Julia S. Kim, Assistant

Attorney General, for appellants.

       Thomas Newkirk, Jill Zwagerman, and Leonard Bates of Newkirk

Zwagerman, P.L.C., Des Moines, for appellee.




       Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
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DOYLE, J.

        The Iowa Department of Administrative Services and Iowa Work Force

Development (collectively “the State”) appeal following a jury verdict in favor of

Dorothea Polk on her claim that she was fired from her employment in retaliation

for filing a civil rights complaint concerning race discrimination.       The State

contends the district court’s jury instructions incorrectly stated the legal standard

for retaliation claims under Iowa Code chapter 216 (2007) because a higher

causation standard was required, causing its prejudice. We affirm.

        I. Background Facts and Proceedings.

        In January 2006, Dorothea Polk was hired by defendant Iowa Workforce

Development (IWD) to work in its Business Services Bureau as a clerk. This

position was subject to a six-month probationary period. In May 2006, Polk filed

an Iowa Civil Rights Commission (ICRC) complaint against her supervisor and

her chain of command. Polk, along with others, alleged there was “[o]ngoing and

continuing racial discrimination and retaliation and the maintenance of a hostile

environment toward African Americans seeking employment and advancement at

IWD.”

        In July 2006, Polk was informed she did not successfully complete her

probationary period, and her employment with IWD was terminated.                Polk

subsequently filed a second complaint with the ICRC asserting she “was fired

due to [her] race as part of the continuing pattern of discrimination against

African Americans and in retaliation for filing a civil rights complaint in May of

2006.” Polk alleged she “was fired for false reasons [three] days before [she was
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to obtain] protection under the Union as [she] was the only person of the group

who complained in May that was subject to termination without union protection.”

       Ultimately, Polk was issued right-to-sue letters following the filing of her

civil rights complaints.   In 2007, Polk, along with others, filed a class action

against defendants IWD and Iowa Department of Administrative Services (IDAS)

alleging, among other things, claims of race discrimination under Iowa Code

chapter 216. In October 2013, Polk’s individual claims against the State of race

discrimination and retaliation were severed and tried separately to a jury.

       Prior to trial, the parties submitted proposed jury instructions to the court.

The court then drafted its own proposed jury instructions and provided them to

the parties before the case was submitted to the jury.           Concerning Polk’s

retaliatory-discharge claim, the court proposed the following instructions, similar

to those proposed by Polk:

                                  Instruction No. 13
               To establish her claim of retaliation, [Polk] must prove all of
       the following elements:
               1. [Polk] filed a civil rights complaint or otherwise reported
       conduct that she reasonably believed was potential harassment or
       discrimination, and
               2. Defendants discharged [Polk], and
               3. [Polk’s] complaint was a motivating factor in the decision
       of Defendants to discharge her.

                 lf [Polk] has proved all of the above elements, you shall
       consider whether . . . Defendants have established that they would
       have taken the same employment action against [Polk] regardless
       of her race, as explained in [the following instruction]. If [Polk] has
       failed to prove any of these elements, your verdict must be
       for . . . Defendants on the claim of retaliation.

                                 Instruction No. 14
              As used in these instructions, an “adverse employment
       action” is an action that detrimentally alters or adversely affects the
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       terms, conditions, or privileges of employment, specifically including
       decisions related to hiring, promotion, and termination.

                                 Instruction No. 15
              As used in these Instructions, [Polk’s] race and/or her
       reports of discrimination based upon race are “a motivating factor” if
       [Polk’s] race and/or reports of discrimination based upon race,
       either separately or combined, played a part in Defendants’
       decision in failing to hire [Polk], in failing to promote [Polk], or in
       terminating [Polk]. [Polk’s] race and/or her reports of discrimination
       based upon race need not be the only factor in Defendants’
       decision to be “a motivating factor.”

                                 Instruction No. 16
               In determining whether or not [Polk’s] race or complaints of
       discrimination were a motivating factor in Defendants’ decision to
       take adverse employment action you may consider whether [Polk]
       has proved that Defendants’ stated reasons for its decision are not
       the real reason, but are a pretext to hide discrimination or
       retaliation.
                                 Instruction No. 17
               You may not return a verdict for [Polk] just because you
       might disagree with Defendants’ decision or believe it to be harsh
       or unreasonable.
                                 Instruction No. 18
               If you find in favor of [Polk] in connection with any of her
       claims for discrimination or retaliation, as described in Instruction
       Nos. 12 and 13, then you must also consider whether or not the
       Defendants have proved that they would have made the same
       employment decisions related to [Polk], regardless of her race or
       report of discrimination.

(Emphasis added.) The State objected to these proposed instructions, and it

asserted its marshalling instruction should be used instead, citing as authority for

its instruction the Eighth Circuit’s Civil Jury Instructions sections 5.21, 5.40, and

10.41 (2013), as well as Iowa Code section 216.6(1)(a), Hy-Vee Food Stores,

Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512 (Iowa 1990), and

Dubuque City Assessor’s Office v. Dubuque Human Rights Commission, 484

N.W.2d 200, 202 (Iowa Ct. App. 1992):
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              In order to recover on her disparate treatment claim of
      retaliatory discharge . . . [Polk] must prove each of the following:
              First, that [Polk] complained to the defendant that she was
      being discriminated against on the basis of race; and
              Second, that [Polk] reasonably believed that she was being
      discriminated against on the basis of race; and
              Third, that the defendant discharged [Polk]; and
              Fourth, that the defendants’ decision to discharge was made
      because [sic] [Polk’s] complaint of race discrimination.

               If any of the above elements has not been proved, your
      verdict must be for the defendant and you need not proceed further
      in considering this claim. The retaliation must be intentional and
      the focus is on the defendants’ motive. Proof of retaliatory motive
      is critical, although it can in some situations be informed from the
      mere fact of differences in treatment.

The State argued the court’s instruction was

      an incorrect statement of law for two reasons. It ignores the
      statutory standard set forth in Chapter 216 of the Iowa Civil Rights
      Act. In particular, it ignores the “because of” language, which is the
      operative language in the Civil Rights Act with regard to . . . claims
      of discrimination.
             It ignores the [Iowa] Supreme Court’s admonition in
      [Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009)] that
      the court . . . must be mindful not to substitute federal concepts for
      the clear words of the Iowa Civil Rights Act. This instruction does
      that. It also ignores the fact that there is an intent requirement for
      disparate treatment claims as set forth in [Hy-Vee Food Stores,
      Inc., 453 N.W.2d at 512].

The State did not proffer an instruction defining the term “because [of],” as used

in its proposed marshalling instruction. The court denied the State’s objection,

finding the court’s proposed instruction adequately and appropriately set forth the

applicable law.

      Thereafter, the case was submitted to the jury. The jury found Polk did

not prove her claims of race discrimination, but it determined Polk did prove her

claim of retaliation, and it awarded damages to Polk.
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      The State subsequently filed a motion for a new trial and judgment

notwithstanding the verdict, alleging, among other things, that “it was legal error

to deny [its] proposed ‘because of’ retaliation instruction and adopt [Polk’s]

proposed ‘motivating factor’ retaliation instruction instead.” A reported hearing

was held on the matter, and the State again argued the court should have given

a “because of” instruction. The court denied its motion.

      The State now appeals, contending the district court erred in not using its

proposed instruction concerning Polk’s retaliatory-discharge claim. It asserts the

“motivating factor” language used by the court incorrectly states the legal

standard for retaliation claims under Iowa Code chapter 216 because a higher

causation standard was required, causing it prejudice.

      II. Scope and Standards of Review.

      The State’s claim that the trial court should have given its requested

instruction is reviewed for an abuse of discretion.        See Asher v. OB-Gyn

Specialists, P.C., 846 N.W.2d 492, 496 (Iowa 2014). If the trial court materially

misstated the law in its instructions, it has committed legal error.       See id.

However, reversal is not warranted if the record affirmatively establishes the

complaining party was not prejudiced. See id. Specifically, if the court’s error

was not one of constitutional magnitude, we will only find prejudicial, reversible

error if we determine “it sufficiently appears that the rights of the complaining

party have been injuriously affected or that the party has suffered a miscarriage

of justice.” Id. (internal quotation marks and citation omitted); see also State v.

Mayhew, 170 N.W.2d 608, 619 (Iowa 1969).
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      III. Discussion.

      The Iowa Civil Rights Act (ICRA), set forth in Iowa Code chapter 216,

makes it an unfair or discriminatory practice for an employer “to refuse to hire,

accept, register, classify, or refer for employment, to discharge any employee, or

to otherwise discriminate in employment . . . because of the age, race, creed,

color, sex, sexual orientation, gender identity, national origin, religion, or

disability” of the employee or job applicant. Iowa Code § 216.6 (Supp. 2007);

see also Dindinger v. Allsteel, Inc., _____ N.W.2d _____, 2015 WL 968718, at *2

(Iowa 2015). Section 216.11(2), in turn, provides:

             It shall be an unfair or 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, obeys the provisions of this chapter, or has filed a
      complaint, testified, or assisted in any proceeding under this
      chapter.

      The State maintained at trial, and advances here, that section 216.6’s use

of the word “because” mandates a higher causation standard than the

“motivating factor” language used in the district court’s instruction. On appeal,

the State suggests that rather than using “a motivating factor,” the court should

have required Polk “prove the filing of her complaint was a significant factor in

her termination—not that it merely ‘played a part’ in her termination.”         Polk

contends the State did not argue at trial that the court should use “a significant

factor” instead of “a motivating factor” and thus failed to preserve this claim for

our review. Polk also contends that, “[w]hen read together, [the jury instructions]

accurately stated the applicable law on the causation standard in retaliation

cases under the ICRA.”
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       As Polk points out, the State did not mention the phrase “a significant

factor” when it objected to Instruction No. 13 setting forth the elements of the

retaliation claim, nor did it propose in its own jury instruction or in its post-trial

motions that “a significant factor” should have been used. In response, the State

argues it objected to Instruction No. 13’s use of “a motiving factor” and Instruction

No. 15’s definition of “a motivating factor” as “played a part,” and this was

sufficient to put the trial court on notice to take the corrective action it now

suggests the court should have taken. We disagree.

       Our supreme court has explained “that objections to jury instructions must

specify the matter objected to and the grounds for objection.” Mitchell v. Cedar

Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 703 (Iowa 2013) (citing Iowa R. Civ. P.

1.924). “The purpose of the rule is to enable trial counsel to correct any errors in

the instructions before the court submits the case to the jury.” Pavone v. Kirke,

801 N.W.2d 477, 496 (Iowa 2011). Consequently, “[o]bjections must be specific

enough to put the trial court on notice of the basis of the complaint so the court

may appropriately correct any errors before placing the case in the hands of the

jury,” and we therefore only consider on appeal the grounds that were sufficiently

specified in the objections below. Mitchell, 832 N.W.2d at 703.

       Here, the State’s own proposed instruction did not use the phrase “a

significant factor.” Additionally, its proposed instruction cited the Eighth Circuit’s

Civil Jury Instructions numbers 10.41, 5.21, and 5.40, which do not use the

language “a significant factor.” Instruction number 10.41 refers the reader to the

legal overview stated in instruction number 10.00, which explains that one of the

elements of a retaliation claim under Title VII of the Civil Rights Act of 1991, 42
                                          9


U.S.C. § 2000e-3, is that “the plaintiff must show that retaliation was a

‘determining factor’ in the employer’s challenged decision.” See 8th Cir. Civ. Jury

Instrs. §§ 10.00 at 251, 10.41 at 257-58 (2013). However, instructions number

5.21 and 5.40 both use the phrase “motivating factor.” See id. §§ 5.21 at 103,

5.40 at 108. In fact, instruction number 5.21 defines “motivating factor” in the

following context: “[T]he plaintiff’s (sex, gender, race, national origin, religion,

disability) was a ‘motivating factor,’ if the plaintiff’s (sex, gender, race, national

origin, religion, disability) played a part [or a role] in the defendant’s decision to

_____ the plaintiff.” See id. § 5.21 at 103. Similarly, neither of the cases cited by

the State in support of its proposed instruction used the phrase “a significant

factor.” See Hy-Vee Food Stores, Inc., 453 N.W.2d at 524 (requiring plaintiff to

show “a discriminatory reason more likely motivated” the employer’s decision);

Dubuque City Assessor’s Office, 484 N.W.2d at 203 (explaining that “the

disparate treatment theory focuses on the employer’s motivation; the disparate

impact theory focuses on the consequences of the employer’s conduct”).

       On appeal the State argues the district court should have used the

language “a significant factor.”    We agree with Polk that the State failed to

advance this argument before the district court and has therefore failed to

preserve it for our review here. “Nothing is more basic in the law of appeal and

error than the axiom that a party cannot sing a song to us that was not first sung

in trial court.”   State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999).          More

specifically, a party cannot amplify or change its objection to an instruction on

appeal. See Moser v. Stallings, 387 N.W.2d 599, 604 (Iowa 1986). We cannot

assign error to the failure to give an instruction that was not requested. See id.
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Accordingly, we affirm the district court’s denial of the State’s motion for a new

trial and a judgment notwithstanding the verdict.

      AFFIRMED.
