                 IN THE SUPREME COURT OF IOWA
                             No. 14–0194

                          Filed June 30, 2015


TERRI ALETA RIVERA,

      Appellant,

vs.

WOODWARD RESOURCE CENTER and STATE OF IOWA,

      Appellees.


      Appeal from the Iowa District Court for Dallas County, Randy V.

Hefner, Judge.



      A terminated employee appeals from a district court judgment

entered on a jury verdict in favor of her employer on her claim for

wrongful discharge in violation of public policy. AFFIRMED.



      Jill M. Zwagerman and Bryan P. O’Neill (until withdrawal) of

Newkirk Zwagerman, P.L.C., Des Moines, for appellant.


      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, Barbara E.B. Galloway, Assistant Attorney General, and

Timothy L. Vavricek (until withdrawal), Assistant Attorney General, for

appellees.
                                            2

APPEL, Justice.

      A terminated employee appeals from a district court judgment

entered on a jury verdict in favor of her employer on her claim for

wrongful discharge in violation of public policy. The employee contends

the district court submitted instructions to the jury that were legally

erroneous and confusing, and the district court should have granted her

motion for a new trial. Upon our review, we affirm the judgment of the

district court.

      I. Factual and Procedural Background.

      In late April 2006, Woodward Resource Center (WRC) hired Terri

Rivera as a residential treatment worker.             WRC, operated by the Iowa

Department of Human Services, provides health and rehabilitation

services to children and adults with mental and physical disabilities.

WRC hired Rivera as a probationary employee for a six-month period but

terminated her employment within the probationary period on October 3.

      On September 26, 2008, Rivera filed a wrongful discharge suit

against WRC and the State. 1           In her petition, Rivera claimed she was

terminated because she made complaints to WRC regarding suspected

patient abuse and asserted her discharge violated state public policy
established in Iowa Code chapters 135C and 235B. WRC contended it

terminated Rivera because she accrued three unscheduled absences.

      After     the    resolution     of   issues     related   to   exhaustion   of

administrative remedies and an appeal to this court related to the

timeliness of the complaint under the applicable statute of limitations,




      1We   refer to the defendants collectively as WRC.
                                             3

the case was remanded to the district court for further proceedings. 2

The case proceeded to trial on December 9, 2013.

        At trial, Rivera testified she witnessed several incidents of patient

abuse at WRC.           She claimed to have observed one of her coworkers

punch and push a patient. She also testified she saw a coworker force

one patient to eat mayonnaise until he gagged and eat a meal into which

he had just vomited. Rivera further told the jury that she was told the

same coworker had put jalapeno peppers, known as “hot sauce,” in the

individual’s eyes.          Rivera testified she reported the abuse to her

supervisor and then reported it to her supervisor’s superior in September

2006.

        Rivera testified that prior to her report of abuse she received good

feedback from her supervisor and was told she was doing a great job.

She further asserted she was given additional responsibilities as her

employment progressed.

        Rivera claimed her report of abuse led to her termination.                   She

testified that when she began her employment at WRC, she was told that

if she wanted to make it through her probationary period, she should not

make complaints or she would be fired.

        Regarding attendance, Rivera offered evidence that WRC did not

have a written policy related to three unscheduled absences for

probationary employees, but instead had a written policy that was

distributed and applied to all employees that allowed up to ten

unscheduled absences before termination and required progressive

discipline.      She presented numerous attendance records of individuals



        2See   generally Rivera v. Woodward Res. Ctr., 830 N.W.2d 724 (Iowa 2013).
                                     4

who were not fired after three absences during their probationary

periods.

      WRC offered evidence challenging Rivera’s version of events,

including evidence that Rivera had three unscheduled absences during

her probationary period. WRC noted that during one of the unscheduled

absences, Rivera was seen attending a garage sale. According to WRC

administrators, WRC maintained a long-standing practice of terminating

probationary employees who had three unscheduled absences during

their probationary period.    WRC offered evidence that attendance was

very important in a facility providing around-the-clock care and that

attendance     was   the   primary   factor   in   determining   whether   a

probationary employee would be retained.

      WRC Treatment Program Administrator John Andorf testified he

determined termination was appropriate “given her three unscheduled

absences” and that the termination was not because of her report of

abuse.     WRC also offered evidence that Rivera’s only report of abuse

related to the “hot sauce” incident, that the report was untimely under

WRC policies, and that, in any event, WRC investigated the incident and

found no abuse.

      Before submitting the case to the jury, the district court crafted its

proposed jury instructions.    Instruction No. 13 stated that in order to

recover on her claim, Rivera must prove, among other things, that her

making of “reports of suspected dependent adult abuse was the

determining factor in the decision to terminate her employment.” There

is no dispute with respect to Instruction No. 13.

      Instruction No. 15 instructed the jury on the determining-factor

standard and gave rise to the fighting issues in this case. Instruction No.

15 stated:
                                   5
           The “determining factor” need not be the main reason
     motivating the decision to terminate employment.       The
     determining factor need only be the reason which tips the
     scales decisively one way or the other.       If Woodward
     Resource Center would have made the decision to discharge
     Rivera even if she had not reported suspected dependent
     adult abuse, the reports were not the determining factor in
     the decision to terminate her employment. The reports were
     not the determinative factor if Woodward Resource Center
     had an overriding business reason for terminating Rivera’s
     employment.

     Instruction No. 15 also addressed the issue of pretext:

            You may find that Rivera’s complaints were the
     determining factor if Rivera has proved that Woodward
     Resource Center’s stated reasons for its actions were not the
     real reasons, but were pretexts to hide its motives. Pretext is
     a stated purpose, reason, explanation, or motive offered by
     an employer in order to cloak a discriminatory motive.
     Pretext is simply one method of proof that you may consider.

     Rivera objected to Instruction No. 15, stating:

            [I]f we’ve already proven our case that the reason her
     complaints of a dependent adult abuse were the determining
     factor in the decision to fire her, then that encompasses it.
     And then [WRC] get[s] to say but then they have an
     overriding business justification, which I think then is a
     burden shifting . . . . I think [the overriding business
     justification] needs to be treated more like as an affirmative
     defense . . . .

     The district court stated its understanding of the objection: “Well,

if I understand your objection.   You’re basically expressing the same

concern with use of the language ‘overriding business factor’ as

expressed by Judge Bennett in Hagen v. Siouxland Obstetrics.” In that

case, Judge Bennett questioned whether

     an employer’s lack of an overriding business justification for
     firing an employee is an independent element of a wrongful
     discharge claim, or if that element is implicit in the
     requirement that an employee’s protected conduct be the
     determining factor in an employer’s decision to fire the
     employee.
                                           6

Hagen v. Siouxland Obstetrics & Gynecology, P.C. (Hagen I), 964 F. Supp.

2d 951, 972 (N.D. Iowa 2013).           Rivera responded “Yes” to the district

court’s inquiry and the district court overruled Rivera’s objection to

Instruction No. 15.

       The case was submitted to the jury, which returned a verdict for

WRC.      Rivera filed a motion for a new trial, which the district court

denied. Rivera appealed.

       In this appeal, Rivera challenges Instruction No. 15 on two

grounds. First, she claims the “overriding business reason” language in

the fourth sentence of Instruction No. 15 improperly shifted the burden

of proof and was confusing to the jury.            Second, she claims the third

sentence of Instruction No. 15 amounted to a “same decision” theory 3

that has no place in a claim for wrongful discharge in violation of public

policy.

       II. Standard of Review.

       “We review the denial of a motion for new trial based on the

grounds asserted in the motion.” Fry v. Blauvelt, 818 N.W.2d 123, 128

(Iowa 2012) (internal quotation marks omitted). If the motion is based on

a legal question, our review is for correction of errors at law. Id. The
basis for the motion for a new trial in this case was an alleged error in

jury instructions, which we review for legal error. See Boyle v. Alum-Line,

Inc., 710 N.W.2d 741, 748 (Iowa 2006). Jury instructions “must convey

the applicable law in such a way that the jury has a clear understanding

of the issues it must decide.”          Thompson v. City of Des Moines, 564

N.W.2d 839, 846 (Iowa 1997).

         3Rivera describes her same-decision theory as involving an “employer admitting

that it used an improper purpose for firing [an] individual, [h]owever the employer then
justifies that it had a right to fire the employee because it would have made the same
decision to fire her based upon some other reason.”
                                     7

      Instructional errors do not merit reversal unless prejudice results.

DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 5 (Iowa 2009); Wells v.

Enter. Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa 2004).         Prejudice

occurs and reversal is required if jury instructions have misled the jury,

or if the district court materially misstates the law. DeBoom, 772 N.W.2d

at 5; Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268

(Iowa 2000).

      III. Preservation of Error.

      We first consider whether Rivera has preserved error with respect

to her challenges raised on appeal.      There is no question that Rivera

preserved her challenge regarding the overriding-business-reason issue

arising out of the fourth sentence of Instruction No. 15.       On appeal,

however, Rivera also challenges the third sentence of Instruction No. 15,

claiming that it amounts to a same-decision defense that has no place in

public-policy torts and is incorrect as a matter of law. Rivera argues that

but-for causation only requires the public-policy violation to be a “tipping

point” in the decision-making process, nothing more.

      Based on our review of the district court record, we conclude that

the   same-decision   challenge   was    not   preserved.    While   Rivera

emphasized the problems with the “overriding business reason” language

in sentence four of Instruction No. 15, Rivera identified no specific

problem with respect to the third sentence of the instruction beyond its

relationship to the alleged overriding-business-reason flaw. See Grefe &

Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994) (“[An] objection

must be sufficiently specific to alert the trial court to the basis for the

complaint so that if error does exist the court may correct it before

placing the case in the hands of the jury.”); see also Lynch v. Saddler,

656 N.W.2d 104, 110–11 (Iowa 2003) (same); cf. Iowa R. Civ. P. 1.924
                                     8

(noting objections to jury instructions must specify the “matter objected

to and on what grounds”).

      IV. Overview of Issues Presented on Appeal.

      In her challenge to Instruction No. 15, Rivera maintains that a

plaintiff seeking to prove wrongful discharge in violation of public policy

does not need to prove that the employer lacked an overriding business

justification.   In support of her argument, Rivera cites Iowa Civil Jury

Instruction 3100.1, which in turn cites Smith v. Smithway Motor Xpress,

Inc., 464 N.W.2d 682 (Iowa 1990), and Springer v. Weeks & Leo Co., 429

N.W.2d 558 (Iowa 1988).         Iowa State Bar Ass’n, Iowa Civil Jury

Instruction 3100.1 (2012). Iowa Civil Jury Instruction 3100.1 does not

contain an overriding-business-justification element. See id.

      From this premise, Rivera argues the fourth sentence of the

instruction improperly shifted the burden of proof to her to show the

employer lacked an overriding business justification for her termination.

While recognizing that the element of an overriding business justification

has been referred to in some of our cases, see, e.g., Davis v. Horton, 661

N.W.2d 533, 535–36 (Iowa 2003) (citing Fitzgerald v. Salsbury Chem.,

Inc., 613 N.W.2d 275, 281–82 & n.2 (Iowa 2000)), Rivera argues the

element is not appropriate in light of the heightened but-for burden of

causation that this court has required in wrongful-discharge-in-violation-

of-public-policy claims, see, e.g., Teachout v. Forest City Cmty. Sch. Dist.,

584 N.W.2d 296, 301 (Iowa 1998). Rivera traces the derivation of the

overriding-business-justification element to a treatise writer, Professor

Henry H. Perritt, Jr. See 2 Henry H. Perritt, Jr., Employee Dismissal Law

and Practice § 7.24, at 66–67 (4th ed. 1998) [hereinafter Perritt I]. She

contends Professor Perritt clarified his position in later versions of his

treatise to note that the fourth element is only applicable in cases in
                                    9

which the employer concedes the wrongful motive played a part in the

employment decision. See Henry H. Perritt, Jr., Employee Dismissal Law

and Practice § 7.08, at 7-100.1 (5th ed. 2008 & Supp. 2014) [hereinafter

Perritt II].

       Rivera notes the issue was extensively reviewed in Hagen I.      In

Hagen I, the United States District Court for the Northern District of Iowa

canvassed the development of Iowa law regarding wrongful discharges in

violation of public policy. 964 F. Supp. 2d at 972–76. The court noted

that under Iowa law, the causation requirement in a wrongful-discharge-

in-violation-of-public-policy claim is a heightened “determining factor”

standard rather than a lower “motivating factor” standard ordinarily

utilized in civil rights claims. Id. at 975–76. In light of the heightened

causation standard, the court concluded the lack of legitimate business

justification was not an additional element in the plaintiff’s case. Id. at

976. Although the court certified the question to this court, we declined

to rule because we were equally divided on the question of whether a

public policy was implicated in Hagen I.        See Hagen v. Siouxland

Obstetrics & Gynecology, P.C. (Hagen II), No. 13–1372, 2014 WL 1884478,

at *1 (Iowa May 9, 2014) (per curiam).

       WRC responds by noting that under our caselaw, the plaintiff must

show a lack of legitimate business reason. WRC cites a number of Iowa

cases which include a business justification element. See Jasper v. H.

Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009); Fitzgerald, 613 N.W.2d at

282 n.2. In any event, WRC maintains the instruction was not reversible

error because it did not misstate the law or confuse the jury.

       To resolve Rivera’s challenge to Instruction No. 15, we must engage

in a two-step inquiry. The first question is whether, as a matter of law,

the plaintiff in a wrongful-discharge-in-violation-of-public-policy case
                                      10

must prove the employer lacked a legitimate business justification for the

termination.   If a plaintiff must make such a showing, Rivera has not

been harmed by the instruction.        Second, if we decide a wrongful-

discharge-in-violation-of-public-policy plaintiff is not required to show

the employer lacked a legitimate business justification as an element of

the claim, we must examine the instruction in this case to determine if it

was legally flawed and, if so, whether reversible error occurred.

      V. Elements      of     Wrongful-Discharge-in-Violation-of-Public-
Policy Claim.

       A. Oscillating Elements of Claim in Iowa Caselaw.

       1. Elements of claim in Iowa cases through Fitzgerald and the

development of Iowa Civil Jury Instructions Chapter 3100. In Springer, we

first held an at-will employee in Iowa could not be terminated for reasons

contrary to public policy.    429 N.W.2d at 560–61.        Since Springer, we

have found multiple public policy rationales may support a wrongful

termination claim of at-will employees in a variety of settings. See, e.g.,

Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 303–

06 (Iowa 2013) (reporting violations of law regarding health and safety of

patients in an assisted living facility); Jasper, 764 N.W.2d at 766–67

(finding sufficient public policy rationale in administrative rule regarding

ratio of children to daycare providers); Fitzgerald, 613 N.W.2d at 286–88

(refusing to commit or suborn perjury); Teachout, 584 N.W.2d at 300–01

(reporting of child abuse); Tullis v. Merrill, 584 N.W.2d 236, 239 (Iowa

1998) (complaining that company was not paying insurance benefits);

Lara   v.   Thomas,   512    N.W.2d   777,   782   (Iowa    1994)   (pursuing

unemployment benefits).
                                        11

      In this case, however, the public policy element of a wrongful

discharge claim is not contested on appeal. The questions in this appeal

relate only to the causation element of a wrongful discharge claim.

      We addressed the causation element of a wrongful-discharge-in-

violation-of-public-policy claim in Smith. 464 N.W.2d at 686. In Smith,

we held the unlawful purpose must be the determining factor behind the

discharge.   Id.   We noted a determining factor “need not be the main

reason behind the decision.”      Id.   Rather, the unlawful purpose “need

only be the reason which tips the scales decisively one way or the other.”

Id.

      Eight years later, in Teachout, we considered the elements of a

wrongful-discharge-in-violation-of-public-policy claim, and the causation

requirement in particular. 584 N.W.2d at 299–303. We stated that in

order to recover damages for termination of employment in violation of

public policy, the “plaintiff must establish (1) engagement in a protected

activity, (2) adverse employment action, and (3) a causal connection

between the two.” Id. at 299. Our statement of the elements in Teachout

did not require the plaintiff prove the employer lacked a reasonable

business justification. See id.

      With respect to causation, we stated “[t]he causation standard in a

common-law retaliatory discharge case is high.” Id. at 301. We noted

the “engagement in protected conduct must be the determinative factor”

in the adverse employment decision. Id. at 301–02 (emphasis in original)

(citing Smith, 464 N.W.2d at 686). Further, we expressly overruled court

of appeals precedent equating a determining factor with a predominant

factor. Id. at 302 n.2. We stated that a factor is determinative if it “tips

the scales decisively one way or the other, even if it is not the
                                   12

predominant reason behind the employer’s decision.” Id. at 302 (internal

quotation marks omitted).

      In Phipps v. IASD Health Services Corp. we demonstrated

application of causation principles in a wrongful-discharge-in-violation-

of-public-policy case.   558 N.W.2d 198, 202–03 (Iowa 1997).       In that

case, we affirmed summary judgment for an employer when the

employee’s only evidence that protected conduct was linked to his

discharge was the fact that he was fired one month after he filed a

grievance questioning the legality of his employer’s conduct under the

Iowa Wage Payment Collections Act.         Id. at 201, 203.   We found the

record contained evidence of unacceptable performance and repeated

disciplinary problems, which we characterized as legitimate reasons for

the employee’s discharge.    Id. at 203.     As a result, the Phipps court

considered legitimate reasons for discharge as evidence that could be

used to determine whether the protected conduct was the determining

factor in the discharge. Id. If the purported reasons were not opposed

by substantial evidence to the contrary, they could be outcome

determinative.   Id.; see also Teachout, 584 N.W.2d at 303 (finding

insufficient evidence of retaliation and evidence that there was a

personality conflict between assistant and supervising teacher).

      When the Iowa State Bar Association developed its Iowa Civil Jury

Instructions in chapter 3100 related to wrongful-discharge-in-violation-

of-public-policy actions, it relied upon the Smith case. See Iowa State

Bar Ass’n, Iowa Civil Jury Instruction ch. 3100. It included a causation

requirement that the protected conduct be the determining factor in the

adverse employment action.       Id. No. 3100.1.      With respect to the

determining factor, Instruction 3100.3 stated, “A determining factor need
                                    13

not be the main reason behind the decision. It need only be the reason

which tips the scales decisively one way or the other.” Id. No. 3100.3.

      The notion that the lack of a legitimate business justification might

be an element of the plaintiff’s case first appears in our cases in

Fitzgerald. 613 N.W.2d at 282 n.2. In Fitzgerald, the court considered

whether a wrongful discharge claim could be brought based upon a

public policy favoring truthful testimony.    Id. at 285.    We concluded

Iowa’s statutes against perjury and the suborning of perjury provided a

public policy rationale sufficient to support a wrongful termination

action. Id. at 286.

      We then proceeded to consider whether the evidence in the case

related to causation was sufficient to survive summary judgment. Id. at

289. We cited Teachout for the proposition that protected conduct “must

be the determinative factor in the decision to terminate the employee.”

Id. (citing Teachout, 584 N.W.2d at 301–02).         As in Teachout, we

characterized the standard of causation as “high.” Id.; see also Teachout,

584 N.W.2d at 301. We also recognized, as in Teachout and Phipps, that

“the existence of other legal reasons or motives for the termination are

relevant in considering causation.” Fitzgerald, 613 N.W.2d at 289; see

also Teachout, 584 N.W.2d at 303; Phipps, 558 N.W.2d at 203. Based on

our review of the record, we concluded there was sufficient evidence to

preclude summary judgment. Fitzgerald, 613 N.W.2d at 289.

      In Fitzgerald, we included a footnote suggesting for the first time in

our caselaw that there may be an overriding-business-justification

element to wrongful-discharge-in-violation-of-public-policy cases. Id. at

282 n.2.    In footnote 2, we noted “[s]ome courts are beginning to

articulate the elements of a cause of action for wrongful discharge” as

including four elements, including an element that the “[e]mployer lacked
                                    14

an overriding business justification for the dismissal (the absence of

justification element).” Id. We cited cases from two other jurisdictions,

Gardner v. Loomis Armoured Inc., 913 P.2d 377, 382 (Wash. 1996) (en

banc), and Collins v. Rizkana, 652 N.E.2d 653, 657 (Ohio 1995). Id. We

noted Professor Perritt advocated the approach in his academic writings.

Id. at 282 & n.2; see also Perritt I § 7.9, at 17–19; Henry H. Perritt, Jr.,

The Future of Wrongful Dismissal Claims: Where Does Employer Self

Interest Lie?, 58 U. Cin. L. Rev. 397 (1989) [hereinafter The Future of

Wrongful Dismissal Claims]. We did not expressly adopt the approach,

but stated it was “a helpful guide and actually parallels the approach we

have followed in addressing the tort on a case-by-case method.”

Fitzgerald, 613 N.W.2d at 282 n.2. The bottom line is that in Fitzgerald,

we cited and applied the three elements of wrongful discharge from

Teachout, but suggested in a footnote that there was some authority for a

fourth element, lack of an overriding business justification. Id. at 281 &

282 n.2.

      2. Elements of claim in Iowa cases after Fitzgerald. The discussion

in the Fitzgerald footnote resurfaced in Davis. See 661 N.W.2d at 535–

36. In Davis, we considered whether participating in a mediation process

and hiring an attorney was protected conduct that could give rise to a

wrongful-discharge-in-violation-of-public-policy claim.   Id. at 536.   The

case involved an employee in a county treasurer’s office who had

difficulties with the elected county treasurer.      Id. at 534–35.     She

requested and received formal mediation, but was placed on probation

and demoted after the mediation session. Id. at 535. She then hired an

attorney to contest the demotion.     Id.   About a month later, she was

fired. Id.
                                    15

        In Davis, we discussed the four-element test from the Fitzgerald

footnote in the body of the opinion and declared the wrongful-discharge-

in-violation-of-public-policy tort had four elements. Id. at 535–36 (citing

Fitzgerald, 613 N.W.2d at 282 n.2).        We rejected the notion that

participation in mediation was protected conduct that could give rise to a

wrongful-discharge-in-violation-of-public-policy claim. Id. at 536. With

respect to the claim that hiring counsel was protected conduct, we stated

that “on the facts of the present dispute it is clearly impossible to

separate [the plaintiff’s] act in hiring an attorney from her act in

challenging a personnel decision made by her employer” and that the

“act should not be insulated from sanction merely because it has been

carried out through an attorney.” Id.

        We again cited the Fitzgerald formulation of the elements of a

wrongful-discharge-in-violation-of-public-policy claim in Lloyd v. Drake

University, 686 N.W.2d 225, 228 (Iowa 2004) (citing Fitzgerald, 613

N.W.2d at 282 n.2). Interestingly, in Lloyd, we stated the four-element

Fitzgerald approach was in accord with the three-element Teachout

approach. Id. However, we did not address the causation question, and

only addressed the question of whether a discharge for attempting to

uphold the criminal laws of the state may be a violation of public policy.

See id. at 229.

        Finally, in Jasper, we again cited the Fitzgerald formulation as

stating the elements of a wrongful-discharge-in-violation-of-public-policy

claim. Jasper, 764 N.W.2d at 761 (citing Fitzgerald, 613 N.W.2d at 282

n.2).   However, in Jasper, as in Lloyd, we were not called upon to

consider any issues related to the putative fourth element of the cause of

action. See id. (addressing only the public policy and evidence proving

causation elements).
                                        16

         3. Hagen I, II, and III. Against this backdrop of Iowa authority, the

United States District Court for the Northern District of Iowa wrestled

with the question of elements of a wrongful-discharge-in-violation-of-

public-policy claim in Iowa. In Hagen I, the plaintiff physician claimed he

was wrongfully discharged in violation of public policy because

                (a) [he] report[ed], stat[ed] an intention to report, or
         [stat]ed that he might report, to a hospital, conduct of nurses
         that [he] believed may have involved wrongful acts or
         omissions;

              (b) [he] disclos[ed] to a patient or a patient’s family that
         the patient may have been the victim of negligent care or
         malpractice; or

               (c) [he] consult[ed] with an attorney, stat[ed] an
         intention to consult with an attorney, or stat[ed] that he
         might consult with an attorney, about whether another
         doctor or nurses had committed wrongful acts of omissions
         that [he] should report to the Iowa Board of Medicine or a
         hospital.

964 F. Supp. 2d at 956.

         In Hagen I, the district court certified the following question to this

court:

               Under Iowa law, is an employer’s lack of an “overriding
         business justification” for firing an employee an independent
         element of a wrongful discharge claim, or is that element
         implicit in the element requiring that an employee’s
         protected activity be the determining factor in the employer’s
         decision to fire the employee?

Id.

         In its discussion of the question of lack of business justification

under Iowa law, the district court recognized the formulation of

Fitzgerald and its progeny contained four elements for wrongful-

discharge-in-violation-of-public-policy claims, including lack of business

justification.    Id. at 975.    Yet, the district court reasoned that the

“business justification element” was implicit in the determining factor
                                      17

analysis of causation. Id. at 974. According to the district court, other

legitimate business reasons could prevent the protected conduct from

tipping the scale and thus being a determining factor in the adverse

employment action. Id. However, the district court went on to explain:

      Nothing in Iowa law supports the proposition that merely
      having an alternative business reason for firing an employee
      can insulate an employer from a wrongful discharge claim
      where the evidence shows that the reason that actually
      tipped the scales toward firing that employee violates public
      policy.

Id. at 974–75 (emphasis in original).

      The district court then examined the derivation of the four-element

test cited in Fitzgerald and subsequent cases. Id. at 975–76. The district

court traced the four-element test starting from Jasper through

Fitzgerald to the Gardner and Collins cases cited in the Fitzgerald

footnote.     Id.   As acknowledged in Fitzgerald, the district court found

these cases derived their analysis from the writings of Professor Perritt.

Id. at 975.

      The district court then turned its attention to the writings of

Professor Perritt and his seminal law review article in which he presented

the elements of a wrongful-discharge-in-violation-of-public-policy action,

including the fourth element of lack of legitimate business justification.

Id. at 975 (citing The Future of Wrongful Dismissal Claims, 58 U. Cin. L.

Rev. at 398–99).        The district court pointed out, however, that in

Professor Perritt’s formulation, the third element of wrongful discharge,

the element related to causation, differed materially from Iowa law. See

id. at 975–76. Under Professor Perritt’s approach, causation need only

be a motivating factor for the adverse employment action, while under

Iowa law protected conduct must be the determining factor. Id.; cf. The

Future of Wrongful Dismissal Claims, 58 U. Cin. L. Rev. at 399 (describing
                                     18

the causation element as: “[t]he plaintiff’s dismissal was motivated by

conduct related to the public policy”).

      In the law, such distinctions and nuances matter. As explained by

the district court, under a motivating-factor standard of causation, a

plaintiff could prevail when protected conduct was a motivating factor

even if the determining factor was the legitimate business reason. See

Hagen I, 964 F. Supp. 2d at 976. Thus, an additional element may make

some sense in preventing such an untoward result.         Id.   The district

court reasoned that because of Iowa’s use of the higher and more

demanding determining-factor standard, the fourth element in the Perritt

formulation should not be regarded as a separate element under Iowa

law but as implicit in Iowa’s causation standard.        Id.    Because the

district court conceded that Iowa law was not clear on the point,

however, it certified the question to us. Id. We divided evenly on the first

question of whether the plaintiff presented conduct protected by public

policy, however, and we declined to answer the other questions posed by

Judge Bennett. See Hagen II, 2014 WL 1884478, at *1. On remand, the

federal district court denied all claims for relief based upon instructions

that did not require the plaintiff to prove lack of legitimate business

reason as a separate element.             Hagen v. Siouxland Obstetrics &

Gynecology, P.C. (Hagen III), 23 F. Supp. 3d 991, 1009 (N.D. Iowa 2014).

      B. Discussion of Elements of Wrongful-Discharge-in-Violation-

of-Public-Policy Claims.       The above discussion reveals that our

precedents in this area are not surefooted. Prior to Fitzgerald, there was

no suggestion of a fourth element in a wrongful-discharge-in-violation-of-

public-policy case. See Teachout, 584 N.W.2d at 299. While footnote 2

in Fitzgerald was elevated into the text in our subsequent cases, the

question of whether an employee proved a lack of legitimate business
                                    19

justification was not explicitly an issue in these later cases. See Jasper,

764 N.W.2d at 761; Lloyd, 686 N.W.2d at 223–29; Davis, 661 N.W.2d at

535–36.    Further, we declared that the four elements of wrongful

discharge contained in the Fitzgerald footnote were parallel to our public

policy tort cases, which was not quite correct. See Lloyd, 686 N.W.2d at

228.   Language in our earlier cases, never disowned, indicate that a

plaintiff may prevail in a wrongful-discharge-in-violation-of-public-policy

case even if the protected conduct is not the primary factor, but is

nevertheless the determining factor, causing the adverse employment

action. See Teachout, 584 N.W.2d at 302 n.2; Smith, 464 N.W.2d at 686.

We thus regard this case as an opportunity to clarify the elements of a

wrongful-discharge-in-violation-of-public-policy claim, the allocation of

the burden of proof, and the role of legitimate business reasons or

justifications in the claim.

       First, we recognize the basic and consistent teaching of our

caselaw, namely, that in order to prevail on a wrongful discharge claim in

violation of public policy, the plaintiff must show the protected conduct

was the determining factor in the adverse employment action. See Lloyd,

686 N.W.2d at 229; Teachout, 584 N.W.2d at 301; Smith, 464 N.W.2d at

686.    Further, we recognize our caselaw has consistently stated a

determining factor is one that tips the balance in an employment

decision. See Teachout, 584 N.W.2d at 302 n.2; Smith, 464 N.W.2d at

686.   In order to be the determining factor, it is not necessary the

protected conduct be “the main reason behind the decision,” but it must

be the factor that makes the difference in the employment outcome.

Smith, 464 N.W.2d at 686; see Davis, 661 N.W.2d at 536 (analogizing

determining factor to the “final straw in [the employer’s] decision to
                                       20

terminate [the plaintiff’s] employment”).      No party challenges these

established principles in this case.

      Second, we conclude the lack of legitimate business justification is

not an element of the claim that the plaintiff must prove. Plaintiffs are

rarely required to prove a negative.          Moreover, Judge Bennett’s

distinction between motivating factor and determining factor has been

recognized in our cases. See, e.g., DeBoom, 772 N.W.2d at 9 n.4 (noting

use of motivating factor was preferable to determining factor in a case

involving pregnancy discrimination “in order to eliminate confusion

between tortious discharge and discrimination claims”). Because under

our cases plaintiffs must prove that the protected conduct was the

determining factor, Iowa law does not impose liability on an employer

when the determining factor was a legitimate business reason and

unlawful retaliation was simply a motivating factor.

      Third, the fact the plaintiff does not have the burden to show the

employer lacked an overriding business justification does not mean

evidence related to an employer’s legitimate business reasons has no

relevance   in   a   wrongful-discharge-in-violation-of-public-policy   case.

Indeed, an employer will prevail if it convinces the fact finder that the

legitimate business reasons supporting the action were so strong as to

defeat the conclusion that the protected conduct was the determining

factor in the adverse employment decision. See, e.g., Phipps, 558 N.W.2d

at 200–01, 203.      In other words, the Iowa Civil Jury Instructions on

causation are sufficiently broad to allow an employer to make the case

that the legitimate business reasons, and not the protected conduct,

were the determining factor in the employment decision.

      Fourth, we believe there may be some relatively rare circumstances

when an employer is entitled to an affirmative defense of an overriding
                                    21

business justification.   As noted by Professor Perritt in his revised

treatise, there may be occasions in which an employee is in fact

terminated because of wrongful conduct, but the employer should

nonetheless prevail. See Perritt II § 7.08, at 7-100.1. For instance, in

Harman v. La Crosse Tribune, an employee claimed he was fired for

conduct protected by the First Amendment to the United States

Constitution, but his conduct also violated the ethical rules of attorneys.

344 N.W.2d 536, 540 (Wis. Ct. App. 1984). In this situation, with two

competing public policies, the employer may be able to establish an

overriding business reason for the termination. See id. at 540–41. As

noted by Professor Perritt, in such a case, the employer admits the

protected conduct caused the termination, but asserts another policy

trumps the public policy asserted by the employee. See Perritt II § 7.08,

at 7-100.1. No such claim, however, has been raised in this appeal.

      VI. Rivera’s Challenge to Jury Instruction No. 15.

      A. Rivera’s Position. Rivera asserts that if she is not required to

prove as an element of her wrongful-discharge-in-violation-public-policy

claim that there was not an overriding business justification—as we have

ruled—then Instruction No. 15 is necessarily flawed. For the most part,

Rivera’s challenge to the instruction focuses on the fourth sentence of

Instruction No. 15.    This sentence states, “The reports were not the

determinative factor if Woodward Resource Center had an overriding

business reason [i.e. its attendance policy] for terminating Rivera’s

employment.”

      Rivera claims the fourth sentence improperly invites the jury to

find that even if the unlawful reason for termination was “the

determinative factor” under the first three sentences of the instruction,

the jury could nevertheless conclude Rivera could not prevail because of
                                     22

a business reason that trumped, or was substantively more important,

than the public policy she sought to promote in the wrongful discharge

claim. According to Rivera, in order for a policy to “override” a wrongful

termination based on public policy, the asserted overriding policy cannot

be a business reason, but must be a competing public policy.

      Rivera illustrates her argument by citing Harman, in which a law

firm terminated a shareholder lawyer for making public comments about

a client.    344 N.W.2d at 538.      The shareholder lawyer claimed the

discharge violated his First Amendment rights. Id. According to Rivera,

the court found that even if the plaintiff in Harman was fired as a result

of public comments, the public policy of enforcing ethical obligations to

clients overrode the alleged public policy in free speech that the plaintiff

sought to advance. See id. at 540.

      Rivera further points to Smith, a case in which we emphasized a

mere internal policy of an employer did not substantively trump the

public policy articulated by the legislature to prevent terminations of

employees who file workers’ compensation claims.       See 464 N.W.2d at

684–85. Here, Rivera asserts that an overriding business justification is

an affirmative defense available only when the employer concedes the

public policy motivation was the determinative factor in the discharge.

She argues this narrow concept has no application in this case.

      In support of this argument, Rivera points out that the term

“overriding business reason” is not defined. According to Rivera, a jury

could presume the word “override” means “[t]o prevail over; to nullify or

set aside.” Black’s Law Dictionary 1279 (10th ed. 2014). Rivera asserts

a jury could read the sentence and erroneously conclude a business

reason such as attendance could “override” an otherwise unlawful

discharge.
                                      23

      Rivera notes that under our caselaw, a factor is determinative if it

“tips the scales decisively one way or the other” even if it is not the

predominant reason. DeBoom, 772 N.W.2d at 13; Teachout, 584 N.W.2d

at 302. However, the language of “overriding business reason” suggests

that if the business reason is more important, then the plaintiff cannot

prevail even if the unlawful reason was the determining factor.

      Rivera’s argument can be expressed in mathematical terms.

Consider, for instance, a situation in which an employer’s decision to

terminate requires 100 points. Assume that a termination was the result

of mixed motives of legitimate and illegitimate reasons. Further, assume

the jury determines 90 points may be assigned to legitimate business

reasons, and 10 points to unlawful retaliation in violation of public

policy.   At 100 points, a termination occurs.    Although the legitimate

business reasons were weightier than the unlawful reasons in this

hypothetical, a wrongful termination claim would lie because “the

determining factor,” or the factor that tipped the balance to termination,

was the unlawful retaliatory motive.

      Rivera concedes the first two sentences in Instruction No. 15 were

correct statements of law.       However, she argues the fourth sentence

conflicts with them. When one part of the instruction fairly describes the

law, while another part incorrectly states the law, Rivera argues reversal

is required.   See State v. Leins, 234 N.W.2d 645, 648–49 (Iowa 1975)

(reversing based on an instruction containing both correct and incorrect

rules).   Simply because one instruction is correct does not mean,

according to Rivera, that an incorrect instruction may be ignored. See

DeBoom, 772 N.W.2d at 13 (reversing based on conflicting causation

burden of proof instructions).
                                    24

      Rivera claims DeBoom is instructive in this case. In DeBoom, the

trial court defined “determining factor” in conflicting and confusing ways.

772 N.W.2d at 12–13. In one instruction, the trial court used a higher

standard, the “tip the scales” standard, but used a lower “motivating

factor standard” in another. Id. Although one of the instructions was

correct, the inconsistency in the instructions necessitated a new trial.

Id. at 13–14.

      Here, according to Rivera, the district court did the same thing.

The district court properly stated the determining factor required for

causation is the reason that tips the scales, but then in the fourth

sentence instructed the jury that attendance guidelines or other

legitimate business reasons can override a mandatory duty to report

abuse. According to Rivera, this is precisely what happened in DeBoom.

Further, Rivera suggests sentence four improperly put the burden on her

to prove attendance was not an overriding factor.

      Based on the above, Rivera contends Instruction No. 15 was

flawed. Rivera believes the fourth sentence conflicts with the previous

sentences, but further notes that a confusing instruction also warrants

reversal. See McElroy v. State, 637 N.W.2d 488, 500 (Iowa 2001) (noting

we generally reverse when an instruction is confusing); Anderson, 620

N.W.2d at 268 (emphasizing prejudice results when an instruction

confuses the jury).

      Finally, Rivera argues the instructional error was prejudicial.

Rivera contends she offered substantial evidence to support her claim.

She notes the evidence showed the only written attendance policy

provided to probationary employees stated that employees were subject

to termination after ten absences. Further, Rivera offered evidence that

several   employees   had   more   than   three   absences   during   their
                                     25

probationary period and were not terminated. Moreover, Rivera offered

testimony from an employee who had accrued more than three absences

during her probationary period and retained her position, but was

subsequently fired after her next absence following her complaint

regarding a coworker abusing a resident. Rivera argues that the tipping

point—the determinative factor that put her in the termination category

rather than the retention category—was the reporting of abuse.

         B. WRC’s Position. WRC contends Instruction No. 15 was not

conflicting or confusing even if Rivera does not have the burden of

showing a lack of an overriding business reason. WRC notes the district

court in fact agreed with Rivera that she was not required to prove the

absence of an overriding business reason. According to WRC, nothing in

the instruction confused the jury, required Rivera to prove her case

twice, impermissibly shifted the burden of proof, or improperly permitted

the jury to allow WRC to avoid liability.

         WRC emphasizes the earlier sentences in Instruction No. 15 plainly

stated that “the determining factor” need not be the main reason

motivating the decision to terminate employment but need only be the

reason “which tips the scales decisively one way or the other.” Further,

WRC emphasizes Instruction No. 15 did not explicitly shift the burden of

proof.

         WRC does not advance a standard of review for jury instructions,

or review cases with confusing or conflicting jury instructions.      WRC

emphasizes, however, that while there is no requirement for trial courts

to follow jury instructions of the Iowa State Bar Association, courts may

do so, as long as the instructions fully and fairly embody the law and

applicable principles.    See State v. Ambrose, 861 N.W.2d 550, 562–63

(Iowa 2015) (Wiggins, J., concurring specially) (“[T]he trial court has a
                                     26

duty to make sure the [Iowa State Bar Association’s] instruction

conforms with Iowa law.”).

      In the alternative, WRC argues any error in the instruction was

harmless.     WRC recognizes that “[e]rrors in jury instructions are

presumed prejudicial unless the record affirmatively establishes there

was no prejudice.” Asher v. OB-Gyn Specialists, P.C., 846 N.W.2d 492,

496 (Iowa 2014) (internal quotation marks omitted). WRC argues that

when nonconstitutional error is involved, “the test of prejudice is whether

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 omitted).

      WRC contends the essential choice for the jury in this case was

one of credibility.    The jury had a choice of either believing Rivera or

believing WRC.        WRC asserts Rivera’s testimony was fraught with

inconsistency; she offered widely diverging accounts of what occurred.

Further, WRC notes Rivera lied on her application of employment,

attended a garage sale when she called in sick, and had at least three

unscheduled    absences.       WRC    characterizes   Rivera’s   evidence   of

retaliation as speculation and conjecture, while contending its own

evidence was overwhelming.

      C. Iowa Caselaw on Jury Instructions. We begin with a brief

review of Iowa caselaw regarding challenges to jury instructions. First,

we examine the substantive bases for challenges to jury instructions.

Then we review application of the harmless-error doctrine to cases in

which jury instructions, though imperfect, do not form a basis for retrial.

      1. Substantive bases for challenges to jury instructions. The basic

framework for a successful challenge to jury instructions is well

established. A material misstatement of the law in a jury instruction, of
                                        27

course, ordinarily requires reversal. Waits v. United Fire & Cas. Co., 572

N.W.2d 565, 575 (Iowa 1997). For example, instructions that improperly

allocate the burden of proof are subject to reversal. See Koenig v. Koenig,

766 N.W.2d 635, 646 (Iowa 2009).             “When jury instructions contain a

material misstatement of the law, the trial court has no discretion to

deny a motion for a new trial.” Benn v. Thomas, 512 N.W.2d 537, 539

(Iowa 1994).

       We also reverse when instructions are misleading and confusing.

See, e.g., McElroy, 637 N.W.2d at 500. We have said an instruction is

misleading or confusing if it is “very possible” the jury could reasonably

have interpreted the instruction incorrectly. Id.; see also State v. Horrell,

260 Iowa 945, 954, 151 N.W.2d 526, 532 (1967) (requiring new trial

when instructions are “obviously confusing”).          On the other hand, if a

review of the instructions “leads to the inevitable conclusion that the jury

could not have misapprehended the issue,” then the challenge is without

merit. Moser v. Stallings, 387 N.W.2d 599, 605 (Iowa 1986) (emphasis

added); Mora v. Savereid, 222 N.W.2d 417, 422 (Iowa 1974) (same). An

erroneous jury instruction is not necessarily cured by a later instruction

correctly stating the law. See Leins, 234 N.W.2d at 648–49 (reversing for

new trial when trial court gave an instruction containing two tests, one

proper and one improper, and the reviewing court was unable to

determine which rule the jury applied).

       Our cases illustrate these principles.         For example, in State v.

Hanes, we noted the trial court gave an incorrect instruction when the

last sentence of the instruction improperly suggested that the defendant

need   not   have   specific   intent   at    the   time   of   the   alleged   act,

notwithstanding previous language in the marshalling instruction that

provided a correct statement of the law. 790 N.W.2d 545, 555–56 (Iowa
                                     28

2010).     Although remanding on other grounds, we noted the district

court “should not instruct the jury upon retrial that the defendant’s

specific intent may exist at any time.” Id. at 556. Similarly, in DeBoom,

we reversed the trial court’s denial of a motion for a new trial in a

wrongful discharge case when one instruction suggested that the proper

causation standard was a “determining factor” while another instruction

used the “motivating factor” standard. 772 N.W.2d at 12–14.

      In determining whether an instruction is inaccurate, misleading, or

confusing, we look to the instructions as a whole and do not require

perfection. For example, in State v. Pelelo, while we disapproved of an

additional sentence added to an entrapment instruction, we concluded

that, nonetheless, the instructions taken as a whole accurately reflected

the law.    247 N.W.2d 221, 225 (Iowa 1976).       Similarly, in Robeson v.

Dilts, we held that although it would have been preferable for an

instruction to contain specifications of negligence, there was no

reversible error, as an earlier instruction contained the specifications.

170 N.W.2d 408, 415 (Iowa 1969).

      We have also disapproved repetitive instructions that unduly

emphasize a feature of the case. For instance, repeated emphasis that

the city was not an insurer for all injuries that occurred on the premises

was reversible error.    See Clarke v. Hubbell, 249 Iowa 306, 316, 86

N.W.2d 905, 911 (1957). On the other hand, when largely repetitive or

overlapping instructions provide some additional guidance, reversal may

not be required. See, e.g., Burkhalter v. Burkhalter, 841 N.W.2d 93, 106–

07 (Iowa 2013) (finding that “[w]hile the instructions overlapp[ed] to some

degree . . . a single repetition coupled with a clarification of the law does

not amount to error”); Andrews v. Struble, 178 N.W.2d 391, 400 (Iowa
                                    29

1970) (holding repetition not proper but permitted when “of some aid in

clarifying the requirement of proximate cause”).

      2. Harmless-error doctrine. Even when we find an instruction

legally inadequate, error may be harmless.     In applying the harmless-

error doctrine we “first guess” the jury. In other words, we try to divine

what a jury would have done had it been properly instructed, an

admittedly delicate task that should emphasize humility over hubris.

      We      have   held   the   same    harmless-error    analysis    for

nonconstitutional trial errors applies in the case of a nonconstitutional

challenge to jury instructions. Hanes, 790 N.W.2d at 550. The burden

is on the party claiming harmlessness.     See id.   We assume prejudice

unless the record affirmatively establishes that there was no prejudice.

Id. at 551.    Harmless error may be found, for example, if the record

affirmatively establishes that a party has not been injuriously affected by

the alleged error or that there has not been a miscarriage of justice. Id.

at 550.

      In some cases, application of the harmless-error doctrine is

relatively clear. For example, when an erroneous instruction makes the

burden more onerous on the successful party, any error is clearly

harmless and reversal is not required. See Asher, 846 N.W.2d at 499;

Hagenow v. Schmidt, 842 N.W.2d 661, 677 (Iowa 2014). Similarly, we

have held that when a party succeeds on two theories, one of which is

properly instructed, any error in the instructions on the improperly

instructed second theory is harmless.     See Olson v. Prosoco, Inc., 522

N.W.2d 284, 290 (Iowa 1994).

      We have also found harmless error when one instruction arguably

omits a legal requirement that is included in subsequent instructions on

the ground that the instructions are to be read as a whole. Thavenet v.
                                    30

Davis, 589 N.W.2d 233, 237 (Iowa 1999); Robeson, 170 N.W.2d at 414.

When, however, an inadequate instruction relating to the right of

recovery goes to “the very heart of the case,” it is not rescued by abstract

instructions elsewhere.   Law v. Hemmingsen, 249 Iowa 820, 825, 89

N.W.2d 386, 390–91 (1958).

      D. Analysis of Rivera’s Challenge to the Jury Instruction. The

differences between the parties centers on the relationship of the fourth

sentence of Instruction No. 15 to the earlier sentences and the meaning

of the phrase “overriding business reason.” Rivera claims a jury could

conclude the fourth sentence trumps or provides an exception to the first

three sentences.   WRC essentially argues the fourth sentence merely

restates the correct principles of law provided in the first three sentences

of Instruction No. 15.

      We first clear underbrush. The fact the district court agreed with

Rivera’s general proposition that she was not required to prove there was

no overriding business justification does not necessarily justify the use of

the instruction. The question before us is not what the court subjectively

intended. Indeed, the subjective intent of the district court is irrelevant.

The question is what the language of the instruction would mean to a

reasonable jury. See State v. Liggins, 524 N.W.2d 181, 185 (Iowa 1994)

(“The interpretation of . . . instruction[s] requires the court to determine

what a reasonable juror could have understood the charge as meaning.”

(Internal quotation marks omitted.)); see also State v. Winders, 359

N.W.2d 417, 420 (Iowa 1984); State v. Rinehart, 283 N.W.2d 319, 322

(Iowa 1979).

      We further reject Rivera’s argument that the instruction as written

impermissibly embraces a same-result doctrine, as it relates to the fourth

sentence of Instruction No. 15. Instruction No. 15 correctly states that
                                     31

the unlawful reason must be a tipping point or determining factor in the

decision. If it is not—if indeed the termination was based upon other

factors and the unlawful conduct did not tip the balance—then the

termination is lawful.     To the extent Rivera believes the “same result”

argument is inappropriate when the unlawful retaliation is not the

determinative factor in the termination, we do not agree.

      We now turn to the analysis of the language of the instruction.

Our caselaw instructs that any evaluation of an alleged flaw in a jury

instruction must be considered based upon the instructions as a whole,

not piecemeal. See Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525,

536 (Iowa 1999); Thavenet, 589 N.W.2d at 236. Taking the instructions

as a whole, we conclude a reasonable jury would read the sentences in

Instruction No. 15 harmoniously. The first sentences of Instruction No.

15 clearly indicate that a determining factor need not be the most

weighty but must only “tip the scales” of decision-making. This correct

statement of law is not expressly contradicted by the fourth sentence.

The fourth sentence can be easily harmonized with the first three by

interpreting the phrase “overriding business reason” to mean a business

reason   that   prevents    the   unlawful    retaliation   from    being   the

determinative factor in the discharge.       Nothing in the fourth sentence

indicates it is an exception to the previous sentences, but it appears to

be a simple restatement of the law. “An instruction is not confusing if a

full and fair reading of all of the instructions leads to the inevitable

conclusion that the jury could not have misapprehended the issue . . . .”

Moser, 387 N.W.2d at 605. Although the fourth sentence provided no

additional guidance and is not approved, we do not find the additional

sentence misled or confused the jury in light of the totality of the

instructions. As a result, Rivera is not entitled to a new trial.
                                     32

      VII. Conclusion.

      For the above reasons, we conclude Rivera is not entitled to a new

trial. The judgment of the district court is affirmed.

      AFFIRMED.

      All justices concur except Wiggins and Hecht JJ., who concur in

part and dissent in part.
                                      33

                                  #14–0194, Rivera v. Woodward Res. Ctr.

WIGGINS, Justice (concurring in part, dissenting in part).

      I agree with the majority’s conclusion that the instruction given

was erroneous, but depart from the majority’s conclusion that the

instructional error does not require a new trial. I conclude a new trial is

required for the following reasons.

      Based on the language used in the instruction, a jury could have

considered the fourth sentence in Instruction No. 15 to be simply a

restatement of the law provided in the previous three sentences, as

Woodward Resource Center (WRC) suggests.          If so, this court might

characterize the instruction as a redundant but harmless elaboration of

the law. See, e.g., State v. Chatterson, 259 N.W.2d 766, 771 (Iowa 1977)

(noting as a whole, instructions properly set out the elements of the

crime, and the use of the phrase “ ‘a felony,’ though redundant, was

merely a contemporary characterization of the statutory crime . . . [and]

was nothing more than harmless excess verbiage”).

      On the other hand, it is also plausible a jury would read the fourth

sentence to be an exception to the first three sentences, assuming the

fourth sentence cannot be redundant and must mean something. It is

true, of course, the fourth sentence does not use the terms “if” or

“however,” but jurors are not highly skilled linguists interpreting

instructions with an eye to grammatical superiority that might be

employed by legal cognoscenti.        As Chief Judge Traynor wrote many

years ago:

            The most troublesome instructions are not those that
      are demonstrably incorrect, but those that may be
      incorrectly understood because of their inept language. . . .
      If an instruction on a substantial issue is confusing to a
      reasonable juror, the judgment should be reversed.
                                      34

Roger J. Traynor, The Riddle of Harmless Error 74 (1970).

      In my view, a reasonable juror could conclude the fourth sentence

did in fact provide an exception to the principles of the previous three

sentences. This is because a juror could reasonably conclude the fourth

sentence must state a legal principle beyond that contained in the first

three sentences of the instruction.

      There is an additional problem. The ambiguous use of the phrase

“overriding business justification” in the fourth sentence complicates the

relationship between the first three sentences and the fourth sentence.

The judge did not define this term in the instruction. What exactly is an

overriding business justification? Does it mean a business reason that is

more important than the public policy the plaintiff seeks to advance in

the wrongful discharge claim? Does it mean that a business justification

may substantively trump or override the public policy asserted by the

plaintiff by being more important?         If so, the instruction is a plainly

incorrect statement of law in light of our rejection of the requirement that

the plaintiff prove a lack of overriding business justification in a wrongful

discharge suit.

      One thing is clear, however.          Given the majority’s substantive

ruling in this case, the fourth sentence added nothing of value to

Instruction No. 15. The first three sentences adequately stated the law.

The sole question before the court is whether the addition of the fourth

sentence is sufficiently vague, ambiguous, conflicting, or confusing to

require a new trial under the facts and circumstances of this case.

      On balance, I find the instruction sufficiently problematic to

require a new trial. On numerous occasions, this court has held that

new trials are required when instructions are sufficiently ambiguous to

undermine our confidence in the verdict, often characterizing the
                                     35

instructions as confusing.    See State v. Becker, 818 N.W.2d 135, 141

(Iowa 2012) (emphasizing that “prejudice will be found where . . . the

instruction could reasonably have misled or misdirected the jury”);

McElroy v. State, 637 N.W.2d 488, 500 (Iowa 2001); Anderson v. Webster

City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000) (finding

instructions did not mislead jury but noting that “[p]rejudice results

when the trial court’s instruction materially misstates the law, confuses

or misleads the jury or is unduly emphasized”); Mills Cnty. State Bank v.

Fisher, 282 N.W.2d 712, 715–16 (Iowa 1979) (noting the instruction was

“sufficiently ambiguous and confusing to constitute error”); State v.

Horrell, 260 Iowa 945, 954, 151 N.W.2d 526, 532 (1967) (noting an

“obviously confusing” instruction would constitute reversible error).

       Here, while WRC’s linguistic argument is plausible, I also find

substantial plausibility in the plaintiff’s interpretation of the instruction.

I note our cases indicate that when it was possible the jury was confused

or mislead, reversal is required.     See Becker, 818 N.W.2d at 141.         I

certainly cannot come to the “inevitable conclusion” that the jury

understood the fourth sentence in Instruction No. 15 as a simple

restatement of previous concepts in the instruction.           See Moser v.

Stallings, 387 N.W.2d 599, 605 (Iowa 1986); cf. McElroy, 637 N.W.2d at

500.

       WRC, of course, is correct that harmless instructional error does

not require reversal. See Asher v. OB-GYN Specialists, P.C., 846 N.W.2d

492, 499 (Iowa 2014). Most of our harmless error cases, however, do not

deal with canvassing of the evidence to determine what a jury would have

done had it been properly instructed. See, e.g., McElroy, 637 N.W.2d at

500 (noting the instruction could have reasonably been misinterpreted

by the jury without discussing how the jury would have decided with a
                                    36

correct instruction).    Instead, the cases deal with analysis of the

instructions themselves to determine whether a party has, in fact, been

injured by the error or if a reasonable jury could have been misled by the

instructions when taken as a whole.         See, e.g., id.    The imperfect

instructions in these cases were harmless as a matter of law.

      In this case, WRC argues for a different application of our harmless

error rules. Namely, WRC argues even if the instruction was wrong, a

jury would have come to the same result in light of the record developed

at trial. The burden of showing the error is harmless rests with WRC.

See State v. Hanes, 790 N.W.2d 545, 550 (Iowa 2010). However, when

an instruction relates to the core of the case and misleads or confuses

the jury, reversal is mandated. See Law v. Hemmingsen, 249 Iowa 820,

824–25, 89 N.W.2d 386, 390–91 (1958); see also Koenig v Koenig, 766

N.W.2d 635, 646 (Iowa 2009) (“An instruction that improperly states the

burden of proof is a material error demanding reversal.”).

      In any event, even if I were to conduct a fact-based harmless error

analysis here, WRC cannot meet its burden. I note at the outset that the

district court denied WRC’s motion for summary judgment in this case.

As a result, there were substantial issues to be tried.

      I further note the instruction challenged in this case is not on the

periphery of the dispute, but is at its heart. Law, 249 Iowa at 824–25,

89 N.W.2d at 390–91; cf. Anderson, 620 N.W.2d at 267 (noting an

instruction that amounted to a comment on the evidence did not warrant

reversal when clarified by a subsequent instruction).        The instruction

does not relate to a collateral matter, but to a critical issue in the case.

Specifically, when is an impermissible reason, the determinative factor,

sufficient to support a wrongful discharge claim?            A flawed core
                                      37

instruction in a case that did not survive summary judgment is not a

good candidate for fact-driven harmless error analysis.

      WRC summarizes the evidence offered at trial that would support a

jury verdict in its favor.    WRC stresses the testimony of Rivera was

inconsistent and generally incredible, while the testimony of WRC

administrators clearly supported WRC’s theory that any report made by

Rivera of abusive conduct was not a determinative factor in its decision

to discharge. Clearly, WRC offered substantial evidence in support of its

claim that it did not wrongfully discharge her.

      We cannot conduct a balanced review of the facts by solely

considering WRC’s evidence. 4        Rivera offered evidence that relates

directly to the instructional issue posed in this appeal. She presented

evidence that only two attendance policies were provided to probationary

employees: one limiting absences to ten occurrences per year and one

providing that when probationary employees experienced three absences

within six months they were sometimes terminated, but sometimes were

not terminated. She presented evidence that one probationary employee

was   not   terminated    after   three    absences,   but   was   immediately

terminated after a fourth absence and after she complained about the
care at WRC.      A reasonable jury could conclude, based on Rivera’s

evidence, that three absences did not automatically lead to discharge and

that other factors were relevant in determining whether an employee was

to be terminated.       In light of her strong job performance, Rivera

presented a plausible case, one that survived summary judgment that

the “tipping point” was her complaint regarding the care at WRC. In light


      4In addition, evidence excluded from trial should not be considered in the

harmless error analysis.
                                   38

of the entire record, including the denial of the motion for summary

judgment and the nature of the offending instruction, I cannot conclude

WRC met its burden in showing the confusing instruction was harmless.

     Hecht, J., joins this concurrence in part and dissent in part.
