from the Iowa District Court for Polk County, Robert B.
parties appeal following a verdict in favor of the plaintiff
on his employment-discrimination claims. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, David S. Steward and Julia S. Kim, Assistant
Attorneys General, for appellants/cross-appellees.
Timmer and Whitney Judkins of Fiedler & Timmer, P.L.L.C.,
Johnston, for appellee/cross appeallant.
by Doyle, P.J., and Tabor and McDonald, JJ.
State of Iowa appeals the judgment entered in favor of John
Vetter on his claims of employment discrimination based on
his disability. The State challenges the sufficiency of the
evidence supporting the jury's verdict, several jury
instructions, and the amount of damages awarded. Vetter
cross-appeals, arguing the trial court erred in refusing to
award his litigation expenses.
Background Facts and Proceedings.
Vetter began working for the Iowa Department of Natural
Resources (DNR) in 1976 as a natural resources technician at
the state forest nursery in Ames. He injured his back at work
in July 2011, which ultimately led to spinal surgery in
November 2011. When Vetter returned to work in January 2012,
he was initially assigned light-duty work before gradually
resuming his normal job duties. Although Vetter occasionally
sought help from his coworkers in lifting heavy objects, he
was able to perform his essential job duties.
September of 2012, Vetter underwent a functional capacity
evaluation to determine his physical limitations following
his work injury. The evaluation revealed limitations to the
amount of weight Vetter could lift and carry and the amount
of time he could sit, stand, walk, climb, or bend each day.
The evaluation resulted in the issuance of permanent
restrictions on Vetter's ability to engage in these
activities. Vetter was also restricted from all squatting
January 2013, the State's workers' compensation
administrator sent the DNR the list of permanent restrictions
identified during the functional capacity evaluation and
inquired as to whether the DNR could accommodate them. HR was
called. Legal was consulted. Consultants were hired. In order
to determine whether accommodations were possible, the DNR
obtained two workplace assessments that each recommended
accommodations for Vetter based largely on information
provided by Vetter's supervisor. The suggested
accommodations included job rotation every two-and-one-half
hours and purchasing a customized tractor. However, the
evaluators never talked to Vetter about his job duties or any
accommodations he needed.
also failed to discuss the suggested accommodations with
Vetter or to otherwise ask him what, if any, accommodations
he felt he needed to perform his job. Instead, the DNR
determined that implementing the suggested accommodations
"would have a detrimental impact on the business needs
of the DNR and that such accommodations would result in an
undue burden on the DNR and the State of Iowa" and
terminated Vetter's employment. Because the evaluators
based their suggested accommodations on erroneous information
about Vetter's job duties, Vetter does not believe they
filed a petition alleging the State violated the provisions
of the Iowa Civil Rights Act (ICRA) by discriminating against
him with respect to the terms and conditions of his
employment based on his disability or a perceived disability,
and by failing to reasonably accommodate his disability. At
the close of trial, the following verdict form was provided
to the jury:
Question 1: Did Plaintiff prove his claim of
Disability Discrimination against Defendants? (Please
mark an "X" in the appropriate spaces.)
YES ___ NO ___
(Proceed to Question 2.)
Question 2: Did Plaintiff John Vetter prove
his claim that Defendants failed to provide him with a
reasonable accommodation? (Please mark an "X"
in the appropriate spaces.)
YES ___ NO ___
(Proceed to Question 3.)
Question 3: Did Plaintiff John Vetter prove
his claim of Perceived Disability Discrimination against
Defendants? (Please mark an "X" in the
YES ___ NO ___
(Proceed to Question 4.)
(If your answer to Questions 1, 2, or 3 is "yes, "
proceed to Question 4. If your answers to each of Questions
1, 2, and 3 is "no, " then do not answer
any more questions.)
jury answered "yes" to questions 1 and 2, but it
left question 3 unanswered. The jury then proceeded to
question 4 to determine the amount of Vetter's damages,
which it determined to be $164, 732.13 in back pay, $250,
000.00 for past emotional distress, and $185, 000.00 for
future emotional distress, for a total damage award of $599,
732.13. The trial court awarded Vetter an additional $88,
690.19 in front pay damages, for a total award of $688,
trial court denied the State's motion for judgment
notwithstanding the verdict, finding Vetter proved he was
disabled, that his disability was a motivating factor in the
DNR's decision to terminate his employment, and that the
DNR denied Vetter's request for accommodation. The court
denied the State's motion for new trial after finding
substantial evidence supported the jury's award of
damages for emotional distress. The trial court awarded
Vetter $245, 281.50 in attorney fees and $837.14 in expenses.
The State appealed, and Vetter cross-appealed.
Sufficiency of the Evidence.
State first contends the trial court erred in denying its
motions for directed verdict and judgment notwithstanding the
verdict because the evidence was insufficient to show it
discriminated against Vetter based on his disability.
Scope of review.
review sufficiency-of-the-evidence claims for the correction
of errors at law. See Faber v. Herman, 731 N.W.2d 1,
6 (2007) (setting forth the standard of review for rulings on
motions for judgment notwithstanding the verdict); Figley
v. W.S. Indus., 801 N.W.2d 602, 609 (Iowa Ct. App. 2011)
(addressing the standard of review for rulings on motions for
directed verdict). The question we must ask is whether
substantial evidence supports each element of the
plaintiff's claims. See Gibson v. ITT Hartford Ins.
Co., 621 N.W.2d 388, 391 (Iowa 2001) (jnov);
Figley, 801 N.W.2d at 609 (directed verdict).
Evidence is substantial if a reasonable mind would accept it
as adequate to reach a conclusion. See Figley, 801
N.W.2d at 609-10. In making this determination, we view the
evidence in the light most favorable to the nonmoving party.
See Gibson, 621 N.W.2d at 391; Figley, 801
N.W.2d at 610.
Elements of a disability-discrimination claim.
ICRA protects employees from being discharged or otherwise
discriminated against in their employment based on their
disability. See Iowa Code § 216.1 (2013). Like
its federal counterpart,  the ICRA protects against two types of
discrimination: discrimination involving disparate treatment
and discrimination based on a disparate impact. See
Pippen v. State, 854 N.W.2d 1, 9 (Iowa 2014).
"Disparate treatment" such as is alleged in the
present case is the most easily understood type of
discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion,
sex, . . . national origin[, or disability]. Proof of
discriminatory motive is critical, although it can in some
situations be inferred from the mere fact of differences in
treatment. . . .
Claims of disparate treatment may be distinguished from
claims that stress "disparate impact." The latter
involve employment practices that are facially neutral in
their treatment of different groups but that in fact fall
more harshly on one group than another and cannot be
justified by business necessity. Proof of discriminatory
motive . . . is not required under a disparate-impact theory.
Int'l Bhd. of Teamsters v. United States, 431
U.S. 324, 335 n.15 (1977).
claims the DNR engaged in disparate treatment discrimination
based on his disability. In order to succeed on his claims,
Vetter was required to show he is a person with a disability,
he was qualified to perform his job either with or without an
accommodation for his disability, and he suffered an adverse
employment decision because of his disability. See
Casey's Gen. Stores, Inc. v. Blackford, 661
N.W.2d 515, 519 (Iowa 2003).
Whether Vetter has a disability.
court instructed the jury that, in order to prove his
disability-discrimination claims, Vetter was required to show
by a preponderance of the evidence that he had a back
impairment and that his back impairment was a
"disability" because "it substantially limited
him in one or more major life activities." See
Iowa Admin. Code r. 161-8.26(1) (defining
"disability"); see also Goodpaster v.
Schwan's Home Serv., Inc., 849 N.W.2d 1, 6 n.1 (Iowa
2014) (interpreting rule 161-8.26 to "provide the
relevant definition of those persons covered by the
ICRA"). The jury instructions define
"impairment" to mean "any physiological
disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs;
respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic;
skin; and endocrine." With regard to whether a
disability impairs a major life activity, the court
instructed the jury:
"Major life activities" are functions such as
caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. A person
is "substantially limited" in a "major life
activity" if the person is unable to perform a major
life activitiy that the average person in the general
population can perform, or is significantly restricted as to
the condition, manner, or duration under which the average
person in the general population can perform the same major
life activity. The phrase "substantially limits"
should be interpreted broadly. The determination of whether a
condition substantially limits a major life activity must be
made without considering the helpful effects of mitigating
measures such as medications, surgery, physical therapy, or
other treatment or devices that improve the condition.
To determine whether [Vetter] is substantially limited in a
major life activity, you should consider (1) the nature and
severity of the impairment; (2) the duration or expected
duration of the impairment; (3) the permanent or long term
impact, or the expected permanent or long-term impact of or
resulting from the impairment; and (4) whether the individual
is impaired during episodes or flare-ups, even if life
activities are not impaired at all when in remission.
See Iowa Admin. Code r. 161-8.26(3);
Bearshield, 570 N.W.2d at 919 (citing 29 C.F.R.
§ 1630.2(j) (1997)).
undisputed evidence shows Vetter suffered a back injury that
required medical treatment, including surgery. The evidence
also supports a finding that the injury affected his
musculoskeletal system. Vetter's back injury impaired his
ability to lift, carry, sit, stand, walk, climb, bend, and
squat, as is reflected in the work restrictions issued by the
doctor who examined Vetter during his functional capacity
evaluation. Vetter also testified that compared to the
average person, he was limited in his ability to lift, sit,
walk, bend, or climb:
Q. Was your back condition a physical impairment?
A. Yes, it was.
Q. In 2012 and 2013 were you able to lift as much as the
average person with your back condition?
A. No, I was not.
Q. Did your back condition limit your ability to lift?
A. It did, yes.
Q. Does your back condition still limit your ability to lift
as much as the average person?
A. Yes, it does.
Q. In 2012 and 2013 did your back condition limit your
ability to sit, stand, walk, bend, kneel, or climb as much as
the average person?
A. Yes, it did.
Vierling, a vocational rehabilitation counselor and
consultant who has "been heavily involved in doing
research with the Americans with Disabilities Act" since
1996 or 1997, testified as an expert witness for Vetter. In
assessing whether Vetter has a disability, Vierling
"[l]ooked at the limitations that were assigned to him,
his skills and abilities, the type of skills that he had
acquired through his work, " reviewed his job
description and the job descriptions developed by the
Department of Labor to determine a vocational profile.
Vierling testified that the work restrictions placed on
Vetter's back injury show he is restricted in his ability
to participate in the major life activities of sitting,
standing, walking, and lifting compared to the average member
of the workforce.
Q. What is it that you learned John could not do with regard
to his disability?
A. The main [thing he] could not do, the main restriction,
was lifting, weight-wise from-he was in the 20- to 25-pound
range and also walking, standing, sitting, there [were] some
limitations there, although they did not appear to be very
restrictive to me. Those were the main ones.
And the lifting is kind of a main one because jobs usually
start out with indicating that there's an amount that you
should be able to lift in that job and then the frequency of
the lifting. And I believe in his job it was up to 50 pounds
on an occasional basis, which is about a third of a
So looking at that and then looking at his restrictions and
then talking to him about the work and about how he had been
doing the work after returning for about a year, actually
more than a year, it was very interesting.
Q. Was it your understanding that John was limited in lifting
between 20 or 25 up to 50 pounds?
A. 20 to 25 pounds.
Q. Right, depending on whether it was waist to floor or-
Q. -waist to crown, I think?
Q. 20 or 25-
A. To waist and then overhead as well, yeah.
Q. Did you learn what kind of things John was able to do if
he was ever required to lift in that range, that he had
options available to him in the workplace?
A. That he could do?
Q. Right. Like, in order to not have to lift between 25 and
A. Yes. He had some equipment that he had used in the past.
Vierling determined that Vetter has a disability under Iowa
also presented testimony from Vienna Hoang, an assistant
technology counselor specialist at Vocational Rehabilitation
Services for the State of Iowa who was asked by the DNR to
write a report recommending accommodations for Vetter's
disability. Hoang testified:
Q. And it was your understanding that the State believed John
had a disability when they asked you to write the report;
A. Correct, yes.
Q. That was the whole reason you were brought in; correct?
. . . .
Q. . . . You had no reason to disagree that John Vetter had a
disability since you saw his ...