                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-2593
                         ___________________________

                                      Jack Gross

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                             FBL Financial Group, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                              Submitted: May 15, 2012
                              Filed: September 28, 2012
                                    [Unpublished]
                                   ____________

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

PER CURIAM.

       This case is before the court for a third time. See Gross v. FBL Fin. Servs.,
Inc., 588 F.3d 614 (8th Cir. 2009) (Gross II); Gross v. FBL Fin. Servs., Inc., 526 F.3d
356 (8th Cir. 2008) (Gross I). Jack Gross sued his employer, FBL Financial Group,
Inc. (“FBL”), alleging that FBL discriminated against him because of age, in violation
of the federal Age Discrimination in Employment Act and the Iowa Civil Rights Act.
A jury returned a verdict in favor of Gross, but after appellate litigation that reached
the Supreme Court, see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), we
concluded that an error in the jury instructions required a new trial on both federal
and state claims. Gross II, 588 F.3d at 617-21.

       On remand, the district court1 convened a second trial and instructed the jury
in accordance with our opinion in Gross II. The jury returned a verdict in favor of
FBL, and the court entered judgment accordingly. Gross appeals the judgment on his
claim under the Iowa Civil Rights Act, asserting that the district court’s jury
instruction misstated Iowa law and required him to meet an unduly high burden of
proof.

      In Gross II, we addressed the correct standard for an age discrimination claim
under Iowa law in light of Deboom v. Raining Rose, Inc., 772 N.W.2d 1 (Iowa 2009),
and the Iowa court decisions that preceded Deboom. We concluded that in a mixed-
motives case—where “there is no one ‘true’ motive behind the decision,” as “the
decision is a result of multiple factors, at least one of which is legitimate,” Price
Waterhouse v. Hopkins, 490 U.S. 228, 260 (1989) (White, J., concurring in
judgment)—the plaintiff typically bears the burden of persuasion “to establish that
age was a motivating or determining factor in the employer’s decision, and that the
adverse action would not otherwise have occurred.” Gross II, 588 F.3d at 620; see
Deboom, 772 N.W.2d at 6 (“[T]he legislature’s purpose in banning employment
discrimination based on sex was to prohibit conduct which, had the victim been a
member of the opposite sex, would not have otherwise occurred.”) (internal quotation
omitted). Because Gross acknowledged that he did not present what Justice
O’Connor described in Price Waterhouse as “direct evidence” of discrimination, 490


      1
       The Honorable Thomas J. Shields, United States Magistrate Judge for the
Southern District of Iowa, sitting by consent of the parties pursuant to 28 U.S.C.
§ 636(c).

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U.S. at 277-78 (O’Connor, J., concurring in judgment), we concluded that the burden
of persuasion did not shift to the defendant under Iowa law. Gross II, 588 F.3d at 620
(citing Vaughan v. Must, Inc., 542 N.W.2d 533, 538-39 (Iowa 1996), and Landals v.
George A. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990)).

        Gross argues that the district court erred by instructing the jury at the second
trial in accordance with Gross II, because on remand he did not try a mixed-motives
case. He contends that he tried instead a “pretext” discrimination case—in which the
issue “is whether either illegal or legal motives, but not both, were the ‘true’ motives
behind the [employer’s] decision,” Price Waterhouse, 490 U.S. at 260 (White, J.,
concurring in judgment) (internal quotation omitted)—and that a different jury
instruction was therefore appropriate. See Newberry v. Burlington Basket Co., 622
F.3d 979, 982-83 (8th Cir. 2010).

       Whether a case should be submitted to a jury as a “pretext” case or a “mixed-
motives” case, however, does not depend on the plaintiff’s unilateral declaration. It
is a matter to be decided by the court based on the evidence at trial. “‘[T]he choice
of jury instructions depends simply on a determination of whether the evidence
supports a finding that just one—or more than one—factor actually motivated the
challenged decision.’” Smith v. Xerox Corp., 602 F.3d 320, 333 (5th Cir. 2010)
(quoting Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir. 2002) (en banc),
aff’d, 539 U.S. 90 (2003)); see Miller v. Davenport Cmty. Sch. Dist., Nos. 1999-588,
9-849, 99-0650, 2000 WL 210292, at *5 (Iowa Ct. App. 2000) (“Whether a case is
a pretext case or a mixed-motive case is a question for the court once all the evidence
is received.”).

       Gross took the position in the first trial and on appeal that this case was
properly submitted to the jury as a mixed-motives case. The evidence at the second
trial was not materially different from the evidence at the first. It was not error for the
district court to conclude that the evidence justified treating the case as one in which

                                           -3-
a jury could find mixed motives, and to give an instruction that conformed to our
opinion in Gross II.

      The judgment of the district court is affirmed.
                     ______________________________




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