                IN THE SUPREME COURT OF IOWA

                               No. 06–1063

                         Filed August 28, 2009


ELIZABETH CHACEY DEBOOM,

      Appellant,

vs.

RAINING ROSE, INC., CHART ACQUISITION CORP., CHARLES
HAMMOND, and ESTATE OF ART CHRISTOFFERSEN,

      Appellees.
________________________________________________________________________
      Appeal from the Iowa District Court for Linn County, Thomas M.

Horan, Judge.



      Plaintiff challenges jury instructions in an action against her

employer alleging sex and pregnancy discrimination. REVERSED AND

REMANDED WITH DIRECTIONS.



      Beth A. Townsend of Townsend Law Office, P.L.C., West Des
Moines, for appellant.



      Patrick M. Roby and Robert M. Hogg of Elderkin & Pirnie, P.L.C.,

Cedar Rapids, for appellees.
                                        2

STREIT, Justice.

      Elizabeth DeBoom was fired from her job at Raining Rose, Inc.

shortly after returning from maternity leave. She filed suit against the

company alleging she was impermissibly fired because of her sex and

pregnancy.       After a defense verdict, DeBoom appealed alleging several

deficiencies in the jury instructions. We hold the district court should

have instructed the jury it could infer discrimination if it believed Raining

Rose’s proffered reasons for terminating DeBoom were a “pretext.”

Further,   DeBoom       was   prejudiced    by   an   erroneous definition      of

“determining factor” in the jury instructions. We remand for a new trial.

      I.     Background Facts and Prior Proceedings.

      Elizabeth DeBoom began working for Raining Rose in May 2003 as

the company’s marketing director. 1 A few weeks later, DeBoom informed

Charles Hammond, the company’s president, she was pregnant.

Hammond asked DeBoom if she planned to return to work after the baby

was born, and she said “yes.” When Art Christoffersen, the chairman of

the board of directors, learned of the pregnancy, he asked DeBoom if she

was going to “be like all those other women who find it’s this life-altering

experience and decide to stay home.”          DeBoom assured him she was
committed to the company.         After being on bed rest for approximately

two weeks, DeBoom gave birth to a son on January 12, 2004.

      Prior to her maternity leave, DeBoom received favorable feedback

regarding her work from her employers, especially Hammond. Hammond

visited DeBoom after the baby was born and told her the company was

eager to have her back.



      1Raining  Rose manufactures natural body care products in Cedar Rapids, Iowa.
During DeBoom’s tenure, the company employed between approximately fifteen and
thirty employees.
                                          3

       DeBoom returned to work part-time on March 11, 2004.                        She

testified she had a massive list of projects to be completed. Hammond

and Christoffersen gave DeBoom a work evaluation she missed due to

her maternity leave. They told her she was doing a great job and gave

her a 15% raise. DeBoom began working full-time on April 12. She was

terminated on April 20. Hammond told DeBoom her position was being

eliminated and she was no longer a good fit for the company. Hammond

told DeBoom they were very frustrated she had not completed a major

project which she began before maternity leave.                 He also expressed

dismay she had sent “Butt Balm” to a radio deejay for a promotion

because Raining Rose did not own the name and had no plans to market

the product.      According to DeBoom, Hammond told her she “wasn’t

catching up fast enough from the maternity leave and that they had

begun to doubt whether [she] was still committed to [the] job.”

Hammond denied making that statement.                 Hammond offered DeBoom

the opportunity to do free-lance work for the company, but she declined.

       DeBoom filed a claim with the Iowa Civil Rights Commission

alleging Raining Rose fired her because of her sex and pregnancy. After

the Commission issued a right-to-sue letter, DeBoom filed this lawsuit in

the district court. 2 After both parties presented their evidence at trial,

Raining Rose made a motion for a directed verdict, asserting DeBoom

was not a member of a protected class (i.e., pregnant) at the time of her

termination, and she did not present competent evidence to support an

inference of discrimination or to support that the reasons given by

Raining    Rose    for   terminating     her    employment       were    pretext   for

discrimination. The motion was denied. The jury returned a verdict in


        2DeBoom filed suit against several defendants. For simplicity, we will refer to

the defendants collectively as “Raining Rose.”
                                     4

favor of Raining Rose. DeBoom filed a motion for a new trial alleging the

district court made several errors with respect to the jury instructions.

After the motion was denied, DeBoom appealed on the same grounds.

Raining Rose responded the instructions were proper but even if they

contained errors, the judgment for Raining Rose should be upheld

because the district court should have granted the motion for directed

verdict.

      II.   Scope of Review.

      “We review a trial court’s ruling on a motion for directed verdict for

correction of errors of law.” Summy v. City of Des Moines, 708 N.W.2d

333, 343 (Iowa 2006). A directed verdict is required “only if there was no

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

Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 472 (Iowa 2005).

Evidence is substantial when “reasonable minds would accept the

evidence as adequate to reach the same findings.”       Easton v. Howard,

751 N.W.2d 1, 5 (Iowa 2008). “Where reasonable minds could differ on

an issue, directed verdict is improper and the case must go to the jury.”

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

1989).

      “We review alleged errors in jury instructions for correction of

errors at law.”   Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa

2006). 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.” Vaughan v. Must, Inc., 542 N.W.2d

533, 539 (Iowa 1996). Any error in the instructions given “does not merit

reversal unless it results in prejudice.”     Wells v. Enter. Rent-A-Car

Midwest, 690 N.W.2d 33, 36 (Iowa 2004). Jury instructions should be

considered “in their entirety.” Anderson v. Webster City Cmty. Sch. Dist.,
                                          5

620 N.W.2d 263, 265 (Iowa 2000).                 Reversal is warranted if the

instructions have misled the jury. Id. Prejudicial error occurs when the

district court “materially misstates the law.” Id.

      III.    Merits.

      Under the Iowa Civil Rights Act of 1965, it is an “unfair or

discriminatory practice” to discharge an employee “because of . . . sex.”

Iowa Code § 216.6(1)(a) (2003). Similarly, it is unlawful for an employer

to terminate the employment of a woman disabled by pregnancy

“because of” her pregnancy.         Id. § 216.6(2)(d).          “[T]he legislature’s

purpose in banning employment discrimination based on sex was to

prohibit conduct which, had the victim been a member of the opposite

sex, would not have otherwise occurred.” Sommers v. Iowa Civil Rights

Comm’n, 337 N.W.2d 470, 474 (Iowa 1983).

      This case was tried shortly after we held plaintiffs seeking damages

under the Iowa Civil Rights Act were entitled to a jury trial. See McElroy

v. State, 703 N.W.2d 385, 394–95 (Iowa 2005).                On appeal, DeBoom

alleges the district court made four errors with respect to jury

instructions. First, she contends the district court erred by refusing to

give a “pretext” instruction, i.e., an instruction stating the jury may infer

discrimination if it does not believe the employer’s proffered reasons for

the termination. Second, she claims the district court erred by refusing

to give her requested instruction on inconsistent testimony.                 Third,

DeBoom       argues   the   instruction       providing   the   elements    of   her

discrimination    claim     impermissibly       added     unnecessary    elements,

including damages, to her burden of proof. And finally, she claims the

instructions that defined “determining factor” were inconsistent and

increased her burden of proof.
                                          6

       Raining Rose argues the district court’s instructions were proper.

Alternatively, the company claims DeBoom was not prejudiced even if the

jury instructions were erroneous because Raining Rose was entitled to a

directed verdict for two reasons: 1) DeBoom was not a member of the

protected class (i.e., pregnant 3) when she was terminated and 2) she did

not   present     substantial     evidence     to    support     an    inference    of

discrimination or to rebut the legitimate non-discriminatory explanation

put forth by Raining Rose.

       A. Pregnancy Discrimination.

       The Iowa Civil Rights Act prevents an employer from firing an

employee because of her sex or pregnancy.                 The general provisions

provide “[i]t shall be an unfair or discriminatory practice for any . . .

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

Iowa Code § 216.6(1). Section 216.6(2)(d) deals with pregnancy directly:

“An employer shall not terminate the employment of a person disabled by

pregnancy because of the employee’s pregnancy.” Raining Rose contends

DeBoom could not qualify for protection under Iowa Code section 216.6

because she was not pregnant at the time of her termination. Raining

Rose also contends the district court should not have submitted

DeBoom’s case to the jury because she did not present substantial

evidence to support a claim of discrimination.

       To establish a prima facie case of pregnancy discrimination, the

plaintiff must demonstrate “(1) she was pregnant; (2) she was qualified

for her position; and (3) her termination occurred under circumstances


       3The  record seems to indicate that all parties considered DeBoom’s claim of
discrimination based on her “sex and pregnancy” as a single claim.            The jury
instructions state “you should interpret the word ‘sex’ to include not only [DeBoom’s]
gender, but also her pregnancy, the fact that she gave birth to a child, and conditions
related to her pregnancy.” As DeBoom, Raining Rose, and the district court only
addressed discrimination based on pregnancy, we do so as well.
                                     7

giving rise to an inference of discrimination.” Smidt v. Porter, 695 N.W.2d

9, 14 (Iowa 2005). The burden then shifts to the defendant “to offer a

legitimate nondiscriminatory reason for the termination.” Id. at 15. “If

the employer offers a legitimate nondiscriminatory reason, the plaintiff

must show the employer’s reason was pretextual and that unlawful

discrimination was the real reason for the termination.” Id.

      Raining Rose asserts DeBoom does not have a valid pregnancy

claim because her status as a “new mom” is not part of the protected

class of pregnant women. See Piantanida v. Wyman Ctr., Inc., 116 F.3d

340, 342 (8th Cir. 1997) (“[Employee’s] claim of discrimination based on

[employee’s] status as a new parent is not cognizable under the [federal

Pregnancy Discrimination Act].”). While we agree the Iowa statute does

not recognize a discrimination claim based on DeBoom’s status as a new

parent, we think there is substantial evidence linking DeBoom’s

termination to her pregnancy.

      Although we have not yet determined whether the prohibition

against termination of “a person disabled by pregnancy because of the

employee’s pregnancy” under Iowa Code section 216.6(2)(d) includes a

woman who has recently given birth or taken maternity leave, federal

courts have interpreted the federal Pregnancy Discrimination Act (PDA)

as applying to women who are not pregnant and to women who have

taken authorized maternity leave.        See, e.g., Int’l Union, United Auto.,

Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc.,

499 U.S. 187, 206, 111 S. Ct. 1196, 1207, 113 L. Ed. 2d 158, 178

(1991); Smith v. F.W. Morse & Co., 76 F.3d 413, 424 (1st Cir. 1996).

When interpreting discrimination claims under Iowa Code chapter 216,

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

Act and the Americans with Disabilities Act. See Bd. of Supervisors v.
                                     8

Iowa Civil Rights Comm’n, 584 N.W.2d 252, 256 (Iowa 1998) (“In deciding

gender discrimination disputes, we adhere to the Title VII analytical

framework . . . .”); Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d 324,

329 (Iowa 1998) (“In considering a disability discrimination claim

brought under Iowa Code chapter 216, we look to the ADA and cases

interpreting its language.”).    However, we must be mindful not to

substitute “the language of the federal statutes for the clear words of the

Iowa Civil Rights Act.”   Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa

1989).

      The federal pregnancy discrimination act states:

           It shall be an unlawful employment practice for an
      employer—

          (1) to fail or refuse to hire or to discharge any individual,
      or otherwise to discriminate against any individual with
      respect to his compensation, terms, conditions, or privileges
      of employment, because of such individual’s race, color,
      religion, sex, or national origin . . . .

42 U.S.C. § 2000e–2(a) (2006). The statute defines “because of sex” as
“includ[ing], but are not limited to, because of or on the basis of

pregnancy, childbirth, or related medical conditions.”            42 U.S.C.

§ 2000e(k).   The United States Supreme Court has interpreted the

statute as applying to women who may become pregnant.            Int’l Union,

499 U.S. at 206, 111 S. Ct. at 1207, 113 L. Ed. 2d at 178 (“We conclude

that the language of [the statute], as well as the legislative history and

case law, prohibit an employer from discriminating against a woman

because of her capacity to become pregnant . . . .”).

      In line with the federal statute, several circuit courts have

determined an adverse employment action motivated by a pregnancy

related condition violates the PDA even though the employee was not

pregnant at the time of the discriminatory act.      Hall v. Nalco Co., 534
                                      9

F.3d 644, 649 (7th Cir. 2008) (holding infertility is a pregnancy related

condition where plaintiff claimed she was terminated because she took

time off work to undergo in vitro fertilization); Doe v. C.A.R.S. Prot. Plus,

Inc., 527 F.3d 358, 369 (3d Cir. 2008) (holding woman who alleged she

was terminated for having an abortion stated a prima facie case for

discrimination); Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d

466, 470 (6th Cir. 2005) (holding federal statute covers situation where

employer refused to rehire employee because she might become pregnant

again); see also Nelson v. Wittern Group, Inc., 140 F. Supp. 2d 1001, 1007

(S.D. Iowa 2001) (holding woman who claimed she was terminated after

giving birth because she became pregnant was part of the protected

class).

        After reviewing interpretations of the federal PDA, we interpret the

phrase “a person disabled by pregnancy because of the employee’s

pregnancy” broadly to include women affected by pregnancy, childbirth,

and other related conditions.     Iowa Code § 216.6(2)(d).    Such a broad

interpretation is necessary to effectuate the purpose of the statute. See

Int’l Union, 499 U.S. at 205, 111 S. Ct. at 1206, 113 L. Ed. 2d at 177

(stating legislative history reveals purpose of federal PDA is “to protect

female workers from being treated differently from other employees

simply because of their capacity to bear children”). However, we do not

hold Iowa Code section 216.6(2) prohibits an employer from terminating

an employee based on the employee’s decision to prioritize family over

work.     Such a decision can be made by men as well as women and,

therefore, is not based on the unique capacity of women to bear children

so as to fall within the scope of Iowa’s statute. See Piantanida, 116 F.3d

at 342.
                                      10

      Here, DeBoom was allegedly terminated because she could not

catch up fast enough after she returned from maternity leave. DeBoom

was terminated seven business days after she returned to Raining Rose

full time. Timing alone is not sufficient to demonstrate the employer’s

reason for terminating the employee was pretextual.             Cf. Jasper v. H.

Nizam, Inc., 764 N.W.2d 751, 768 (Iowa 2009) (“We have said that the

timing between the protected activity and the discharge is insufficient, by

itself, to support the causation element of the tort [of wrongful

discharge].”); see also Groves v. Cost Planning & Mgmt. Int’l, Inc., 372

F.3d 1008, 1010 (8th Cir. 2004) (“[T]iming alone does not sufficiently

undermine [an employer’s legitimate] justifications [for termination] to

create a genuine issue of fact on pretext.”). However, a trier of fact may

find timing to be “particularly suspicious,” Smidt, 695 N.W.2d at 15, and

DeBoom did provide other evidence linking her termination to her

pregnancy.

      DeBoom     presented       evidence   to   support    an     inference   of

discrimination and rebut the legitimate nondiscriminatory reason for

termination that Raining Rose put forth.            First, DeBoom presented

evidence of the circumstances of her termination. Raining Rose admitted

it made the decision to terminate DeBoom sometime between the day she

returned to work part-time and the day she was fired.             DeBoom may

fairly argue the termination decision was made before any of her alleged

performance problems. Additionally, DeBoom provided evidence she was

never notified of or disciplined for substandard performance prior to her

termination    whereas   other    employees      received   a   warning   before

termination.   See Smidt, 695 N.W.2d at 15–16 (holding “a trier of fact

could choose not to believe [the employer’s] after-the-fact justifications”
                                          11

where      the   employer   failed   to    produce   documentation   of    poor

performance).

         Second, DeBoom presented statements from which a jury could

infer animus towards pregnant women. DeBoom testified Christoffersen

repeatedly asked her if she would be returning to work after giving birth

and asked whether she was “going to be like all those other women who

find it’s this life-altering experience and decide to stay home.”         A jury

could infer that DeBoom’s employer assumed she would return to the

company without the same commitment to her work as before and

therefore discriminated against her once she returned from maternity

leave.

         Third, DeBoom asserts Raining Rose created a situation in which

she was doomed to fail after she returned from maternity leave.             The

record indicates after DeBoom returned from her maternity leave, she

was working on a multitude of projects that had piled up in her absence

along with new assignments. Prior to taking maternity leave, DeBoom

typically worked sixty-hour weeks.         While she was on maternity leave,

Raining Rose hired a temporary replacement to work ten to fifteen hours

a week. The replacement did not work on all of the projects assigned to

DeBoom, but rather simply handled some items as they came up on a

daily basis and focused on one particular project.           When DeBoom

returned to work part-time two months after giving birth, she was

completely overwhelmed with work that had piled up in her absence.

She was given a massive list of projects demanding her attention.

DeBoom estimated there were forty projects, some of which were new

and some of which were ongoing projects DeBoom had worked on before

her maternity leave. Additionally, when DeBoom returned to work full

time in April, she was assigned the task of spending three days a week
                                           12

doing door-to-door sales.          At the meeting where DeBoom was fired,

DeBoom testified Hammond told her “he felt that [she] wasn’t catching

up fast enough from the maternity leave and that they had begun to

doubt whether [she] was still committed to [her] job.”

       It is a factual question whether Raining Rose terminated DeBoom

for permissible reasons such as she was no longer working an acceptable

amount of hours or performing as well as she had prior to giving birth (a

choice to prioritize family over work) or whether Raining Rose terminated

DeBoom for the impermissible reason that she took maternity leave.

       DeBoom presented substantial evidence that her pregnancy and

maternity leave were a motivating factor 4 in her termination.                         As

“reasonable minds could differ on [the] issue” of whether DeBoom was

terminated      because     of   her    pregnancy,      the   district    court    rightly

determined the case should go to a jury. Stover, 434 N.W.2d at 873.

       B.     Pretext.      DeBoom complains the district court erred by

refusing to instruct the jury on “pretext.” A pretext instruction states a

jury may infer intentional discrimination if it disbelieves the employer’s

asserted reasons for terminating the employee. The district court denied

DeBoom’s request for the following jury instruction:

             You may find that plaintiff’s sex was a motivating
       factor in defendant’s decision to terminate if it has been
       proved by the preponderance of the evidence that
       defendant’s stated reasons for its decision are not the real
       reason, but are a pretext to hide sex discrimination.

       DeBoom’s requested pretext instruction is a correct statement of

law. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143,

120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000) (stating “the


       4As  discussed infra, the term “a motivating factor” is preferable to “a determining
factor” in order to eliminate confusion between tortious discharge and discrimination
claims.
                                     13

plaintiff may attempt to establish that he was the victim of intentional

discrimination ‘by showing that the employer’s proffered explanation is

unworthy of credence’ ” (quoting Texas Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 207, 217 (1981)));

Smidt, 695 N.W.2d at 16 (stating “[i]n appropriate circumstances, the

trier of fact can reasonably infer from the falsity of the explanation that

the employer is dissembling to cover up a discriminatory purpose”

(quoting Reeves, 530 U.S. at 147, 120 S. Ct. at 2108, 147 L. Ed. 2d at

120)).     DeBoom relies on several federal circuit court opinions that

require a pretext instruction be given when requested in a discrimination

case. See Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241

(10th Cir. 2002); Ratliff v. City of Gainesville, 256 F.3d 355, 360 (5th Cir.

2001); Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998);

Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994).        Because the

Iowa Civil Rights Act was modeled after Title VII of the United States Civil

Rights Act, we turn to federal law for guidance in evaluating the Iowa

Civil Rights Act. Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999).

The cases upon which DeBoom relies have all held a pretext instruction

is required in order to ensure the jury understands the plaintiff need not

present an admission or other affirmative evidence of the defendant’s

intent in order to prove discrimination.

         Raining Rose counters there are several circuit courts which have

held a pretext instruction is permissible but not required. See Conroy v.

Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233–34 (11th Cir.

2004); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994); see also

Moore v. Robertson Fire Prot. Dist., 249 F.3d 786, 790 n.9 (8th Cir. 2001)

(expressing doubt it would ever be reversible error for failure to give

pretext instruction); Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir.
                                     14

2000) (same).   Some courts have held a general credibility instruction

(which the district court provided here) is sufficient. See, e.g., Conroy,

375 F.3d at 1235. Moreover, Raining Rose asserts DeBoom was free to

argue in her closing argument to the jury that its stated reasons for

terminating her were merely pretextual and an effort to hide its alleged

discriminatory motive.

      We find the courts requiring a pretext instruction more convincing.

A pretext instruction is necessary because discrimination cases are

difficult to prove. The Supreme Court has acknowledged the issue before

the fact finder in a discrimination case “ ‘is both sensitive and difficult,’

and ‘that [t]here will seldom be “eyewitness” testimony as to the

employer’s mental processes.’ ” Reeves, 530 U.S. at 141, 120 S. Ct. at

2105, 147 L. Ed. 2d at 116 (quoting U.S. Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 1482, 75 L. Ed. 2d 403, 411

(1983)); see also La Montagne v. Am. Convenience Prods., Inc., 750 F.2d

1405, 1410 (7th Cir. 1984) (stating “an employer who knowingly

discriminates . . . may leave no written records revealing the forbidden

motive and may communicate it orally to no one”).         Without such an

instruction, a jury may well assume it cannot find in the plaintiff’s favor

without direct evidence of discrimination. Townsend, 294 F.3d at 1241.

Thus, we hold a pretext instruction “is required where, as here, a rational

finder of fact could reasonably find the defendant’s explanation false and

could ‘infer from the falsity of the explanation that the employer is

dissembling to cover up a discriminatory purpose.’ ” Id. (quoting Reeves,

530 U.S. at 147, 120 S. Ct. at 2108, 147 L. Ed. 2d at 120).

      Raining Rose argues even if a pretext instruction should have been

given, DeBoom was not prejudiced because she failed to present

substantial evidence to support her claims for either sex or pregnancy
                                        15

discrimination. See Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568,

577–78 (5th Cir. 2004) (holding refusal to give pretext instruction was

error but not prejudicial). However, once the defendant offers legitimate

non-discriminatory reasons for terminating the plaintiff, the burden

shifts to the plaintiff to demonstrate the employer’s reasons were

pretextual.    Smidt, 695 N.W.2d at 14–15.          If a plaintiff then presents

evidence of pretext, failure to provide a pretext instruction will result in

prejudice.    See Townsend, 294 F.3d at 1242–43.             Here, as discussed

above, DeBoom presented sufficient evidence of pretext to reach the jury.

Because our case law shifts the burden to the plaintiff to demonstrate

pretext, and because DeBoom presented substantial evidence of pretext,

she was entitled to a jury instruction on pretext. Refusal to instruct the

jury on pretext prejudiced DeBoom.

      C.     Inconsistent Statements.         DeBoom also argues the district

court should have given her proposed instructions on inconsistent

statements by a non-party and a party opponent.                Both DeBoom and

Raining      Rose   requested    the   same     instructions    on    inconsistent

statements, 5 yet the district court refused to give such instructions,

instead only instructing the jury on the credibility of witnesses. 6             As
DeBoom’s request for instructions on inconsistent statements was

legitimate considering the facts and circumstances of this case, the

district court should have instructed the jury on inconsistent statements.

See Vaughan, 542 N.W.2d at 539 (“As long as a requested instruction


      5Both   DeBoom and Raining Rose requested Iowa Civil Jury Instructions 100.13,
Contradictory Statement – Non-Party – Witness Not Under Oath; 100.14, Contradictory
Statements, Non-Party, Witness Under Oath; and 100.15, Statements By A Party
Opponent. At trial, the judge asked whether Raining Rose thought the proposed
instructions were necessary, and Raining Rose said it did not care either way.
       6Instruction 6 is based on Iowa Civil Jury Instruction 100.9, Credibility Of

Witnesses.
                                          16

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

elsewhere in the instructions, the court must give the requested

instruction.”).   As we are reversing for other reasons, we need not

determine whether the district court’s error would require reversal.

      D.   Marshalling Instruction.            DeBoom contends the trial court

improperly instructed the jury. DeBoom argues the district court should

have used the Eighth Circuit Model Civil Jury Instruction 5.01 7 to set

out the elements of her cause of action instead of modifying Iowa Civil

Jury Instruction 3100.1, Tortious Discharge Against Public Policy -

Essentials for Recovery. DeBoom contends modifying the instruction for

tortious discharge against public policy instead of borrowing the Eighth

Circuit’s sex discrimination instructions improperly added several

elements to her burden of proof.               The district court submitted the

following jury instruction:

             To prove discrimination based on her sex and her
      pregnancy, Plaintiff Elizabeth DeBoom must prove all of the
      following propositions:

            1. Plaintiff Elizabeth DeBoom was an employee of
      Raining Rose, Inc. . . . .



      7DeBoom’s     requested instruction based on Eighth Circuit Model Civil Jury
Instruction 5.01 stated:

              To prove sex discrimination, Plaintiff must prove all of the
      following elements:

             1. Defendants discharged Plaintiff; and

             2. Plaintiff’s sex was a motivating factor in their actions.

              If either of the above elements has not been proved by the
      preponderance of the evidence, your verdict must be for defendant and
      you need not proceed further in considering this claim. You may find
      that plaintiff’s sex was a motivating factor in defendant’s decision if it
      has been proved by the preponderance of the evidence that defendants’
      stated reasons for its decision are a pretext to hide sex discrimination.
                                    17
             2. Defendants Raining Rose, Inc. . . . discharged
      Plaintiff Elizabeth DeBoom from employment.

              3. Plaintiff Elizabeth DeBoom’s sex and pregnancy
      was a determining factor in Defendant[] Raining Rose, Inc.[’s]
      . . . decision to discharge Plaintiff Elizabeth DeBoom.

             4. The discharge was a proximate cause of damage to
      Plaintiff Elizabeth DeBoom.

            5. The nature and extent of the damage.

             If the Plaintiff has failed to prove any of these
      propositions, the Plaintiff is not entitled to damages. If the
      Plaintiff has proved all of these propositions, the Plaintiff is
      entitled to damages in some amount.

      1.   Damages.   DeBoom argues this instruction was an improper

statement of the law because it added elements to a discrimination claim

that neither the Iowa Civil Rights Act nor case law require. Specifically,

she objects to having the burden to prove damages and proximate cause.

In her petition, DeBoom sought monetary damages, including attorneys’

fees, as well as “other relief as may be just in the circumstances and

consistent with the purpose of the Iowa Civil Rights Act.”

      If the only relief sought by DeBoom was the recovery of monetary

damages, the court’s marshalling instruction may have been appropriate.

However, in the context of the equitable relief, the court’s instruction

added unnecessary elements to DeBoom’s cause of action.              In the

panoply of relief sought here, the marshalling instruction did not serve

these ends well. If discrimination is proven, the district court may grant
any relief authorized by Iowa Code sections 216.15(8), including granting

an injunction; ordering the rehiring, reinstatement or upgrading of an

employee; and awarding damages caused by the discrimination.             Iowa

Code § 216.16(5). “[D]amages shall include but are not limited to actual

damages, court costs and reasonable attorney fees.” Id. § 216.15(8)(a)(8);

see Greenland v. Fairtron Corp., 500 N.W.2d 36, 39 n.6 (Iowa 1993)
                                            18

(stating employee claiming sex discrimination may recover emotional

distress damages without a showing of outrageous conduct). The jury

should have been instructed to consider damages only in the event

DeBoom proved her sex or pregnancy was a motivating factor in Raining

Rose’s decision to terminate her employment.                    Creating separate

instructions for discrimination and damages allows a plaintiff to seek

equitable relief and attorney fees in the event the jury found she was

discriminated against but failed to prove actual damages.

          2.     Motivating factor v. determining factor.     The main difference

between the jury instruction provided by the court (a modified version of

the tortious discharge against public policy instruction) and the Eighth

Circuit’s model instruction is that the plaintiff must prove her sex or

pregnancy was a determining factor, rather than a motivating factor, in

her discharge.              Although DeBoom concedes the substitution of

“determining” for “motivating” alone would not, in itself, have been error,

she argues the definition of “determining factor” in Instruction 15

increased her burden of proof.

          In the jury instructions, the district court defined “determining

factor” two different ways. In Instruction 14, “Plaintiff’s pregnancy was a

‘determining factor’ if that factor played a part in the Defendant’s later

actions towards Plaintiff. However, Plaintiff’s pregnancy need not have

been the only reason for Defendant’s actions.” (Emphasis added.) This

instruction was derived from the Eighth Circuit’s Model Civil Instruction

5.96, 8        the   only   difference   being   the   substitution   of   the   word

       8DeBoom’s requested instruction based on Eighth Circuit Model Civil Instruction

5.96 stated:
       Definition of Motivating Factor. As used in these Instructions, Plaintiff’s
       pregnancy was a “motivating factor” if that factor played a part in the
       Defendant’s later actions toward Plaintiff. However, Plaintiff’s pregnancy
       need not have been the only reason for Defendant’s actions.
                                     19

“determining” for “motivating.” The subsequent instruction, number 15,

reads: “A determining factor need not be the main reason behind the

decision. It need only be the reason which tips the scales decisively one

way or the other.”    (Emphasis added.)     This instruction is taken from

Iowa Civil Jury Instruction 3100.3, Tortious Discharge Against Public

Policy - Determining Factor.

      The definition in Instruction 15 not only conflicts with Instruction

14, which likely confused the jury, but also imposes on DeBoom a higher

burden of proof than is required in discrimination cases. A factor that

“played a part” is quantitatively different from a factor that “tips the

scales decisively one way or the other.”     Proving her pregnancy was a

factor that tipped the scales requires a much higher burden of proof than

proving her pregnancy was a factor that played a part in her termination.

      This higher burden is not required by either the Iowa Civil Rights

Act or case law. Iowa Code § 216.6(1)(a), (2)(d); Smidt, 695 N.W.2d at 14.

Instruction No. 15, defining “determining factor” as “tips the scales

decisively,” is based on Iowa Civil Jury Instruction 3100.3 and tortious

discharge case law.    See Teachout v. Forest City Cmty. Sch. Dist., 584

N.W.2d 296, 301–02 (Iowa 1998). In Teachout, we stated “[a] factor is

determinative if it is the reason that ‘tips the scales decisively one way or

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

decision.” Id. at 302 (quoting Smith v. Smithway Motor Xpress, Inc., 464

N.W.2d 682, 686 (Iowa 1990)).

      In tortious discharge cases, the causation standard is higher than

in discrimination cases.    Id. at 301.   “The employee’s engagement in

protected conduct must be the determinative factor in the employer’s

decision to take adverse action against the employee.”       Id.   (emphasis

added).   Conversely, in discrimination cases, the plaintiff need only
                                        20

demonstrate “termination occurred under circumstances giving rise to an

inference of discrimination” and his or her status as a member of a

protected class was a determining factor in the decision to terminate

employment. Smidt, 695 N.W.2d at 14–16; Sievers v. Iowa Mut. Ins. Co.,

581 N.W.2d 633, 639 (Iowa 1998); Vaughan, 542 N.W.2d at 538.

Instruction 14 best corresponds with the burden of proof required in

discrimination cases, whereas Instruction 15 accurately states the

burden in tortious-discharge-against-public-policy cases. Not only does

Instruction 15 misstate DeBoom’s burden of proof, but it is likely that

using both of these instructions confused the jury as to what DeBoom

was required to demonstrate. Therefore, we remand for a new trial. See

Anderson, 620 N.W.2d at 268.

         The   district   court    should     have    used     DeBoom’s     proffered

instructions, which were based on the Eighth Circuit’s Model Civil Jury

Instructions. Although the district court could tweak the definition of “a

determining factor,” it would be easier to use the word “motivating”

instead of “determining” in discrimination cases.               Rather than have

competing definitions of substantially the same word (a determining

factor    v.   the   determining    factor)    in    similar   areas   of   the   law

(discrimination and tortious discharge), adopting the word “motivating”

in discrimination cases would eliminate the confusion between the

differing burdens of proof in these types of cases.

         IV.   Conclusion.

         We find DeBoom was prejudiced by the jury instructions.

Therefore, she is entitled to a new trial.

         REVERSED AND REMANDED WITH DIRECTIONS.

         All justices concur except Baker, J., who takes no part.
