                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1622
                            Filed November 26, 2014


ANN BUTCHER,
     Plaintiff-Appellant,

vs.

CITY OF MASON CITY,
      Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Gregg R.

Rosenbladt, Judge.



      Ann Butcher appeals from the district court’s denial of her motion for new

trial. AFFIRMED.



      Roxanne B. Conlin of Roxanne Conlin & Associates, P.C., Des Moines, for

appellant.

      Dominic F. Pechota and David A. Roth of Gallagher, Langlas & Gallagher,

P.C., Waterloo, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                           2


VOGEL, P.J.

       Ann Butcher appeals from the district court’s denial of a motion for new

trial after a jury returned a verdict in favor of the city of Mason City (the City) in

her age-discrimination trial.     She asserts the court erred in: (1) admitting

testimony as to her job performance; (2) approving or rejecting various jury

instructions; (3) denying Butcher’s motion to set aside the verdict; and (4) finding

the verdict administered substantial justice. She supports the last two arguments

by asserting the greater weight of the evidence indicated age was a motivating

factor in the City’s adverse employment action.

       We conclude that, taken as a whole, the jury instructions adequately set

forth the elements required for Butcher to prove age discrimination. Additionally,

any possible prejudice resulting from the City’s witness as to Butcher’s job

performance did not substantially outweigh its relevance, particularly given

Butcher put her performance as an employee at issue. Finally, we conclude the

district court properly found the greater weight of the evidence did not indicate

age was a motivating factor in the City’s adverse employment decision, and

consequently, the court properly denied Butcher’s motion for new trial.           We

therefore affirm the decision of the district court.

I. Factual and Procedural Background

       Butcher was employed with the police department for the city of Mason

City beginning in 1970, when she was hired to be the police chief’s secretary.

Shortly thereafter, she began to work as a dispatcher and data processer, and

then in 1983 served as a payroll account clerk for the finance department. In

February 2006, she voluntarily transferred to the human resources department,
                                            3


where she was responsible for handling correspondence with applicants,

administering civil service tests and the accompanying secretarial work,

conducting new employee orientations, handling workers’ compensation issues,

maintaining confidential files, and providing pertinent information to visitors and

other employees. Throughout Butcher’s thirty-six years of employment, she was

never subject to any disciplinary actions or reprimands.

         In October of 2007, Butcher, then fifty-eight years old, applied for an

administrative assistant position within the police department. Along with ten

other candidates, Butcher was interviewed by Police Chief Michael Lashbrook,

Captain Dennis Bengston, Captain Michael McKelvey, and Tom Meyer, the

human resources manager. Butcher was not offered the position. Debra Riedle,

a forty-year-old female, was hired instead, but was involuntarily discharged in

June 2008.       The vacancy prompted another job posting, and Butcher again

applied for the position on June 16, 2008.           After being interviewed by five

members of the Mason City police department, her application was denied

without explanation.      Melinda Severs, a thirty-five-year-old female, was hired

instead.

         In his testimony, Chief Lashbrook indicated that forms were employed to

evaluate the candidates, who were given scores by each panel member on

various qualities; however, Chief Lashbrook was ultimately responsible for the

hiring decision.1 According to Butcher, when she asked Chief Lashbrook why

she was not hired, he responded that Severs presented herself with “more

confidence” and that he “saw better potential in her.” Butcher’s position with the

1
    The score sheets indicated Severs received a 267 and Butcher scored 261.
                                            4


police department was voluntarily terminated on December 31, 2010, though she

testified that she involuntarily retired as a result of intolerable working conditions.

       On July 30, 2009, Butcher filed a petition naming the city of Mason City as

defendant, and alleging she was discriminated against based on her age in the

2008 hiring decision.2 A jury trial was held, and the jury returned a verdict in

favor of the City. Butcher then moved for a new trial, which the district court

denied. Butcher appeals.

II. Jury Instruction

       Butcher first argues the district court erred when instructing the jury.

Specifically, Butcher takes issue with instruction nineteen, which was labeled

“Elements of Claim—Constructive Discharge,” asserting she did not make a

claim for constructive discharge, that it was not a proper statement of Iowa law

pursuant to Van Meter Industries v. Mason City Human Rights Commission, 675

N.W.2d 503, 511 (Iowa 2004), and it should have been used as an instruction for

damages rather than one for liability. Butcher then argues the court erred in

excluding her eight proposed jury instructions that described different ways in

which age discrimination can be proven.

       “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). The district

court errs if it refuses to give a requested instruction that “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

2
 Butcher conceded at trial the 2007 hiring decision was beyond the statute of limitations.
She also alleged a sex discrimination claim in her petition, though this claim was not
pursued at trial.
                                           5

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). This prejudice

occurs when the district court “materially misstates the law.”          Anderson v.

Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 265 (Iowa 2000). Additionally,

jury instructions should be considered “in their entirety,” and reversal is

warranted if the instructions have misled the jury. Id.

       A. Jury Instruction Nineteen

       Jury instruction nineteen states:

       Your verdict must be for the Plaintiff and against the Defendant if all
       of the following elements have been proved: (1) The Defendant
       made the Plaintiff’s working conditions intolerable, (2) The Plaintiff’s
       age was a motivating factor in the Defendant’s actions, and (3) The
       Defendant acted with the intent of forcing the Plaintiff to quit or the
       Plaintiff’s resignation was a reasonably foreseeable result of the
       Defendant's actions. Working conditions are intolerable if a
       reasonable person in the Plaintiff’s situation would have deemed
       resignation the only reasonable alternative.

       Butcher is correct that Van Meter Industries, 675 N.W.2d at 511, held a

constructive discharge is effected if the plaintiff reasonably believed her working

conditions were intolerable, and there was no opportunity for fair treatment such

that resignation was the only avenue available. Specifically, “[i]n determining

whether a constructive discharge has occurred, the fact finder uses an objective

standard.” Id. at 510. Instruction nineteen is a proper reflection of Iowa law, as

set forth in Van Meter. This was the reasoning employed by the district court,

and illustrated by the following exchange:

              The Court: I just wanted to make a further record on 19,
       which is obviously a very contested jury Instruction . . . . I want to
       go back and compare 19 to the standard federal 8th Circuit
       instruction. And I believe that that last paragraph that I’ve
       included—or is included, rather, working conditions are intolerable if
                                                6


          a reasonable person in the plaintiff’s situation would have deemed
          resignation the only reasonable alternative. That’s actually part of
          the standard.
                 ....
                 I just wanted to make clear on the record that I did not add
          that. It is part of the federal 8th Circuit instruction stock. And
          they’ve got a footnote on it here, footnote 4, notes on use. It says
          that this paragraph aids the jury by providing a definition of what
          constitutes intolerable working conditions and explains that the
          standard is an objective one . . . . And so as I understand the
          objection, [Butcher], is that you believe that this is an accurate
          perhaps statement regarding the federal law, but you believe it’s
          deficient regarding state law?
                 [Butcher]: That is correct, Your Honor. We believe that the
          law is as stated in Van Meter.
                 The Court: All right. And I just wanted to clear up that I was
          not deviating from the standard 8th Circuit instruction on 19.

Thus, while instruction nineteen is a version of the Eighth Circuit’s model

instruction for constructive discharge,3 it nonetheless is a proper reflection of

Iowa law.

          Furthermore, while Butcher is correct in her assertion that she was not

attempting to prove constructive discharge as an element of her claim, taken as a

whole, instruction nineteen did not serve to mislead the jury as to Butcher’s

burden of proof. Specifically, instruction fifteen, labeled “Age Discrimination—

Essential Elements” stated:

                Your verdict must be for Plaintiff Ann Butcher and against
          Defendant on Ms. Butcher’s claim of age discrimination if you find

3
    The Eighth Circuit’s model instruction labeled “Constructive Discharge” reads:
                  First, the defendant made the plaintiff’s working conditions
         intolerable, and
                  Second, the plaintiff’s (age, race, gender, religion) was a
         motivating factor in the defendant’s actions, and
                  Third, [the defendant acted with the intent of forcing the plaintiff to
         quit] or [the plaintiff’s resignation was a reasonably foreseeable result of
         the defendant’s actions].
                  Working conditions are intolerable if a reasonable person in the
         plaintiff’s situation would have deemed resignation the only reasonable
         alternative.
                                           7


       her age was a motivating factor in the City’s decision not to
       promote her to the job of administrative assistant/police chief
       secretary in 2008.
              Ms. Butcher's age was a “motivating factor” if it played any
       part in the Defendant’s decision to not promote her. Ms. Butcher’s
       age need not have been the only reason for Defendant’s actions.

This was a proper summary of Butcher’s burden of proof and the elements she

needed to prove to succeed on her claim. Consequently, taken as a whole,

these instructions did not serve to substantially mislead the jury, and the district

court properly overruled Butcher’s objection to instruction nineteen.4             See

Anderson, 620 N.W.2d at 265.

       B. Proposed Instructions 9, 16, and 16A

       Butcher’s proposed instruction 9 states: “The issue in age discrimination is

both sensitive and difficult. There will seldom be ‘eyewitness’ testimony as to the

employer’s mental processes. An employer who knowingly discriminates may

leave no written records revealing the forbidden motive and may communicate it

orally to no one.” Proposed instructions 16 and 16A—which defined the word

“intolerable” found in instruction 16—read, respectively:

                In order to be permitted to collect damages for her early
       retirement, Ann Butcher must show that she was denied a
       protection based on age discrimination (Instruction 8) and coupled
       with the predictable humiliation and loss of prestige accompanying
       her failure to obtain the particular position she sought in the Police
       Department, she reasonably believed there was no chance for fair
       treatment at the City of Mason City. It is not necessary that she
       show a hostile work environment but rather that she was foreclosed
       from the career path she sought because of the City’s age
       discrimination.
                The employee’s work environment does not need to be
       literally unbearable to be intolerable under the law. An employee

4
  Although claiming this instruction was “central to her claims,” Butcher has failed to
provide any particulars, but adds, “it is clear that the jury must necessarily have been
misled.”
                                         8


       does not need to stay at an employer if she reasonably believes
       there is no possibility that the employer will treat her fairly. It is
       enough that the employee has no recourse within the employer or
       that there is no chance of fair treatment.

       Butcher contends these instructions comply with Deboom v. Raining

Rose, Inc., 772 N.W.2d 1, 10 (Iowa 2009), which held that a “pretext instruction”

is necessary in an employment discrimination trial so as “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.”

       However, the Deboom court relied on the Eighth Circuit’s model

instruction, which states: “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.” Id. This model instruction is

not what Butcher proposed; rather, her instructions take language from the body

of the Deboom opinion, instead of using the actual pretext instruction on which

the Deboom court relied. See id. at 10–11.

       The pretext instruction submitted to the jury in this case—as required by

Deboom—stated:

                The reasonableness of the employer’s explanation for failure
       to promote Ann Butcher may be considered in determining whether
       it is a pretext, or a cover-up for age discrimination.
                Proof that the Defendant’s explanation is not true is one form
       of evidence that you may find proves discrimination. If you find that
       the City’s justification for not selecting Ann Butcher for promotion is
       not true, discrimination may be the most likely alternative
       explanation. This may be especially so, since the City is in the best
       position to put forth the actual reasons for its decision.
                You may find that Ann Butcher’s age was a motivating factor
       in the Defendant’s decision not to promote her if it has been proven
                                          9


       that the Defendant’s stated reason for its decision is not the real
       reason, but is pretext to hide discrimination.
              You may find that age discrimination occurred, if you find
       that the reasons offered by the City for not selecting Ann Butcher
       for promotion are false.

This instruction satisfies the requirements set forth in Iowa case law, and

Butcher’s proposed instructions served neither to clarify nor add a missing

element to the instructions employed in this case. See Vaughan, 542 N.W.2d at

539.   Consequently, the district court properly denied Butcher’s request to

include instructions 9, 16, and 16A.

       C. Five Other Proposed Instructions

       Butcher further argues the court should have admitted various other

proposed instructions. These include jury instruction ten, which reads:

       You are being asked to determine whether Ms. Butcher’s age was
       a motivating factor in the City’s decision not to promote her.
       Because we have no direct access to the human psyche, the law
       says that Ms. Butcher may prove unlawful motive by proving that
       there are inconsistencies, implausibilities, incoherencies, or
       contradictions in the City’s explanation for its action that make the
       explanations unworthy of belief. The presence of weakness,
       inconsistencies, implausibilities, incoherencies or contradictions
       may indicate that there is another explanation, such as
       discrimination.

       Proposed instruction twelve states: “An employer’s deviations from its own

policies and practices may indicate it is engaging in age discrimination.”

Butcher’s proposed instruction thirteen reads: “An employer’s choice to make

employment decisions based on subjective criteria makes it particularly easy to

mask discriminations. You should closely scrutinize an employer’s reliance on

such subjective criteria, as well as any disregard for employees’ objective

qualifications for the job.” Proposed instruction fifteen states:
                                        10


             It is common business practice to select the best qualified
      candidate for a position. When that is not done, a reasonable
      inference arises that the employment decision was based on
      something other than qualification. If you find the City selected the
      less qualified person over the better qualified person, you may find
      that the reason is based on age.
             If the City says that Ann Bucher was not as qualified as the
      person who was promoted by the City to do the job of
      Administrative Assistant to the Police Department, pretext can be
      inferred from the fact that she was actually more qualified than
      those chosen.

Butcher’s final proposed instruction is instruction seventeen, which states:

              The law recognizes that unlawful discrimination sometimes
      happens without the decision maker having planned, thought out or
      even acknowledged to himself or herself that it is taking place. The
      law acknowledges the effects of society’s stereotypes on employers
      in their decision making, and that biased decision making based
      upon those stereotypes can violate the law, even if the decision
      maker is unaware of bias in his or her thinking. This is because the
      law’s purpose is to eradicate discrimination in all forms, regardless
      of the personal character of the individuals making discriminatory
      decisions.
              If you find from all the surrounding circumstances that the
      City treated Ann Butcher differently than it would have [if] she had
      been younger, even if the managers do not acknowledge or realize
      their own motives, you may find in favor of Ms. Butcher.

      The district court, in declining to use these instructions, opined:

      I have reviewed all of those proposed instructions. I have also—
      [Butcher] has provided quotes from various cases that would
      indicate that that language can be found in the case law. [Defense
      counsel] has objected to the inclusion of those proposed
      instructions, and the language is not standard language in either
      the federal or the state standard jury instructions. I’ve decided to
      leave those out because, as [defense counsel] indicated, I think
      those are particular quotes in the context of those individual cases
      and I simply felt that the standard instructions, both federal and
      state, adequately covered the necessary law and I thought the
      inclusion of those other instructions may be potentially confusing to
      the jury and there may be some issue with those instructions as
      actually applied to the facts of this case. And frankly, I thought
      sticking to the standard instructions [was more appropriate].
                                        11


        We agree with the court’s conclusion. These proposed instructions are

not part of the standard instructions, but, rather, are quotations derived from

various cases that are tailored to the individual holdings instead of being a widely

applicable standard that should be used in jury instructions. Furthermore, given

the accurate instructions submitted to the jury, when viewed as a whole, these

proposed instructions did not “correctly state[] the law, [have] application to the

case, and [are] not stated elsewhere in the instructions” such that they should

have been included. See id. Consequently, the district court properly declined to

include Butcher’s proposed instructions in the final instructions submitted to the

jury.

III. Testimony

        Butcher next claims the district court erred in admitting the testimony of

Kevin Jacobson, the financial supervisor, who testified regarding various

criticisms he had of Butcher’s work performance. Specifically, Butcher contends

this testimony should not have been admitted because these criticisms were

never communicated to Butcher, and did not affect her failure to be promoted or

her subsequent voluntary discharge. She further argues the testimony that she

was “disloyal” for bringing her grievances to the attention of the Mason City

Human Rights Commission before addressing them within the department was

particularly prejudicial.

        We review rulings on evidentiary issues for an abuse of discretion. Pexa

v. Auto Owners Ins. Co., 686 N.W.2d 150, 158 (Iowa 2004). 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
                                            12


without the evidence.”      Iowa R. Evid. 5.401.       Relevant evidence will not be

admitted if the prejudice of the evidence substantially outweighs its relevance.

Iowa R. Evid. 5.403.

       Given the subject matter of the case, the district court did not abuse its

discretion in allowing Jacobson to testify.             A defense against an age-

discrimination claim is that the adverse employment decision was not due to the

plaintiff’s age, but rather was based on other factors, such as the employee’s job

performance. See generally Boelman v. Manson State Bank, 522 N.W.2d 73, 81

(Iowa 1994) (noting employee’s job performance was a relevant factor in

determining whether he was discriminated against based on his disability).

Consequently, Jacobson’s criticisms of Butcher’s job performance were relevant

to the case and properly admissible. See Iowa R. Evid. 5.401.

       Moreover, the testimony was not unfairly prejudicial to the point the

prejudice substantially outweighed the evidence’s relevance. See Iowa R. Evid.

5.403. A significant part of Butcher’s argument relied on the fact she had never

been disciplined and had no other work-related complaints against her. Even if

Jacobson’s testimony was otherwise inadmissible, the fact Butcher put her

performance at issue allows the court to admit evidence rebutting Butcher’s

claim.5 See State v. Jones, 471 N.W.2d 833, 835 (Iowa 1991) (discussing rule

that otherwise inadmissible evidence becomes admissible if a party “opens the




5
  An element of the employment discrimination claim is that Butcher must show age was
a motivating factor in the adverse employment decision. See Deboom, 772 N.W.2d at
12–13. Consequently, while not completely required to put her performance as an
employee at issue, it is still an important part of her case. However, the employer is then
free to rebut this evidence, and therefore our analysis of this issue does not change.
                                         13


door” by putting evidence at issue). Consequently, the district court properly

admitted Jacobson’s testimony.

IV. Motion for New Trial

       Butcher’s final argument asserts the district court erred in denying her

motion for new trial. She claims the jury ignored the weight of the evidence

indicating Butcher was discriminated against because of her age, and that this

verdict did not administer substantial justice. In support of her argument, Butcher

relies primarily on the testimony of Michael Campion, Ph.D., who was critical of

what he felt was the subjective nature of the hiring criteria, and opined that the

City’s hiring decision was primarily motivated by Butcher’s age.

       “The scope of our review of a district court’s ruling on a motion for new

trial depends on the grounds raised in the motion.”          Richards v. Anderson

Erickson Dairy Co., 699 N.W.2d 676, 678 (Iowa 2005). If the motion was “based

on a discretionary ground, we review it for an abuse of discretion.”              Id.

Alternatively, if the motion was based on a legal question, our review is for

correction of errors at law.   Id.   Because Butcher’s claimed error is that the

district court improperly found the substantial weight of the evidence did not

indicate age was a motivating factor, and that the verdict did administer

substantial justice, we review the ruling for an abuse of discretion. See Estate of

Hagedorn v. Peterson, 690 N.W.2d 84, 88 (Iowa 2004).

       Upon review of the record, the district court did not abuse its discretion

when denying Butcher’s motion for new trial. Butcher is correct in her assertion

that Dr. Campion’s testimony, as well as the subjectivity of the evaluation criteria,

support her claim of age discrimination. However, credibility determinations are
                                         14


within the sole province of the jury, and therefore the jury here was free to either

believe Dr. Campion or place greater weight on the City’s witnesses, who

testified age was not a motivating factor. See State v. Jellema, 206 N.W.2d 679,

681 (Iowa 1973). Additionally, the subjectivity of the evaluations, while relevant,

does not unequivocally support Butcher’s claim age was a motivating factor in

the adverse employment decision.         Consequently, the district court properly

denied Butcher’s motion for new trial.

       Having considered all of Butcher’s claims, we affirm the rulings of the

district court.

       AFFIRMED.
