from the Iowa District Court for Wapello County, Sherman W.
appeals the district court's grant of a directed verdict
for defendants in his age discrimination action. REVERSED AND
Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for
J. Miller, Attorney General, and Jeffrey C. Peterzalek and
Julie J. Bussanmas, until her withdrawal, Assistant Attorneys
General, for appellees.
by Vogel, P.J., and Doyle and Bower, JJ.
Wyngarden appeals the district court's grant of a
directed verdict for defendants in his age discrimination
action. We conclude our finding in the previous appeal,
Wyngarden v. Iowa Judicial Branch, No. 13-0863, 2014
WL 4230192, at *10 (Iowa Ct. App. Aug. 27, 2014), there were
genuine fact issues for trial on the question of age
discrimination, making summary judgment not appropriate, is
not dispositive in this appeal. After considering the
evidence presented by Wyngarden, we conclude the district
court erred in granting a directed verdict to the State. In
making this finding, we note it is generally the best course
of action to wait until the completion of all evidence to
grant a motion for directed verdict, except in the most
obvious cases. We also address several evidentiary issues we
believe may arise again on retrial. We reverse the district
court's grant of the motion for directed verdict and
remand for further proceedings.
Background Facts & Proceedings
who was born in 1951, was employed as a juvenile court
officer (JCO) by the Iowa Judicial Branch. His immediate
supervisor was Bruce Buttel and Buttel's supervisor was
John Wauters. Wyngarden received an oral reprimand in
November 2007, which was not placed in his file. On October
9, 2008, Wyngarden received a written reprimand based on
Wauters's determination Wyngarden acted with
insubordination when he refused to make corrections requested
by Buttel to a document. Wyngarden utilized the grievance
procedure available to employees of the Iowa Judicial Branch,
but his appeal of the written reprimand was ultimately denied
on May 5, 2009.
January 13, 2010, Wauters suspended Wyngarden without pay for
three days based on violations of work rules pertaining to
the juvenile case of S.I. Wauters claimed Wyngarden (1)
improperly placed S.I., who was on informal probation, in a
day treatment program when the program was only available to
those on formal probation; (2) did not timely draft an
informal adjustment agreement; and (3) had the parties sign
an informal adjustment agreement at a later date and put an
earlier date on it with the word "re-signed."
Wyngarden again filed a grievance under the Judicial
Branch's personnel policies. During the grievance
proceedings, Wauters stated S.I.'s family asked for a
different JCO than Wyngarden, so the case was reassigned to
Doug Reese, a JCO who worked in the same office as Wyngarden.
Wyngarden's appeal of the suspension was denied on April
26, Wyngarden filed a complaint with the Iowa Civil Rights
Commission, claiming he had been subjected to age
discrimination. He received an Administrative Release from
the Iowa Civil Rights Commission and filed a petition against
the Iowa Judicial Branch, Wauters, and Buttel,  raising claims of
age discrimination, retaliation, and loss of benefits.
defendants filed a motion for summary judgment, which
Wyngarden resisted. The district court found Wyndarden's
age discrimination claim was limited to the allegations
related to the three-day suspension due to the time
limitation in Iowa Code section 216.15(13) (2009). The court
determined Wyngarden failed to set forth a prima facie case
of age discrimination and granted the motion for summary
appealed the district court's decision. We found the
evidence of the written reprimand was not barred by the
statute of limitations due to the continuing violation
doctrine. Wyngarden, 2014 WL 4230192, at *10. We
also found there were genuine issues of material fact as to
whether the adverse employment actions against Wyngarden were
pretextual, and concluded summary judgment was not
appropriate. Id. at *12-13. We reversed the district
court's decision and remanded for further proceedings.
Id. at *13.
remand, the defendants filed a new motion for summary
judgment, noting subsequent to our decision the Iowa Supreme
Court filed Dindinger v. Allsteel, Inc., 860 N.W.2d
557, 571 (Iowa 2015), which found "the continuing
violation doctrine does not apply to cases involving discrete
discriminatory acts, as opposed to hostile work environment
claims." The district court denied the motion for
summary judgment but found the only remaining claim in the
action related to discrete acts of discrimination. The court
rejected Wyngarden's assertion the issues of a hostile
work environment and retaliation were still pending.
filed his list of witnesses on October 25, 2016, which
included several other JCOs, and his list of exhibits. The
defendants filed a motion to strike certain witnesses and
exhibits, claiming they had not been previously disclosed
through discovery. The court ruled seven of Wyngarden's
proposed witnesses would be excluded. The court also excluded
any exhibits not previously provided to defendants.
addition, defendants filed a motion in limine. The court
ruled "evidence concerning a discrimination basis of
anything other than age is excluded; and the plaintiff may
only seek damages related to the three-day suspension of the
plaintiff." The court found, "The three-day
suspension of the plaintiff is the only issue surviving the
exhaustion of administrative remedies and the pleading
process." The court determined in order to present
testimony by other employees of the Judicial Branch in an
effort to show Wyngarden was treated differently, he needed
to first make an offer of proof to show the employees were
trial commenced on November 1. Wyngarden testified Buttel
asked Wyngarden and two of his sons, "When is your old
man going to retire?" at a retirement party for another
employee in July 2007. Wyngarden also testified at a meeting
on August 8, 2008, Wauters stated Wyngarden "had the
years of service that would allow [him] to retire."
Wyngarden testified Wauters told him other older JCOs were
retiring and "perhaps [he] should retire as well."
He also testified he met with Wauters and Buttel on September
16, 2009, and felt "they're there again on another
investigation and inquiry and in every way saying to me,
'We'd like you to leave,' without using those
very words." Additionally, Wyngarden stated, "I had
been told I am not happy. I had been told, you can
retire." He testified he believed he was treated
differently than younger employees.
testified he was at his vacation cap for many years and
continued to accrue vacation hours, so if he did not take
vacation he would lose any hours above his vacation cap. He
stated he raised this issue with Wauters but was told if he
took more vacation time it would affect other employees, who
Wyngarden noted were younger. There was conflicting evidence
whether Wyngarden actually lost any vacation time.
testified to reasons he believed the three-day suspension was
pretextual. He stated Wauters approved day treatment for S.I.
on two occasions before he was given the three-day suspension
for putting her in a day treatment program. Wyngarden also
testified he believed Wauters approved placing children in
day treatment programs for other JCOs in the judicial
district. He testified he believed there was a signed
informal probation agreement for S.I. from May 12, 2009, but
when he looked for it in September 2009 it was missing. He
stated he, S.I., and her stepmother, Stephanie, recreated the
original agreement, dating it May 12 and September 4, with
the notation "re-signed."
testified she thought there was a signed agreement from May
2009 but was not 100% certain of this. She stated, "I
was pretty sure we had already signed it and it was just
misplaced." She agreed with Wyngarden's testimony
concerning the recreated document from September 4, 2009. She
stated she never asked for Wyngarden to be removed as
S.I.'s JCO and was upset when it happened. Stephanie
testified Wauters and Buttel met with S.I. at school without
her permission. She stated she felt they were being sneaky
and using S.I.'s case for their own personal agenda.
Stephanie testified she felt Wyngarden did a good job with
S.I. She stated she was "very satisfied" with the
services S.I. received from Wyngarden.
testified Wyngarden "did a great job." Reese
testified Wyngarden "did an excellent job with kids,
cared greatly about the kids, the welfare of the kids, and
their parents." He testified Wauters sent him an email
stating Stephanie had requested him as the JCO for S.I.
instead of Wyngarden. Reese stated at the time Wyngarden was
working on the S.I. file, some documents in other files were
not where they were supposed to be. He stated he believed
Wyngarden received a greater degree of supervision than he
close of Wyngarden's evidence, the State made an oral
motion for a directed verdict. The district court ruled,
"[T]he plaintiff has failed to introduce substantial
evidence to support the elements of the claims, specifically
the element alleging that age was the motivating factor, or
the reason for his suspension." The court also issued a
written ruling, stating it granted the motion for directed
verdict, "for the reasons stated on the record."
Wyngarden now appeals the district court's decision.
Law of the Case Doctrine
claims the district court should not have granted the
State's motion for directed verdict. He notes we
previously held, "On the record as a whole, there are
genuine fact issues for trial on the ultimate question of age
discrimination." Wyngarden, 2014 WL 4230192, at
*13. Wyngarden claims the grant of directed verdict was
contrary to the law of the case doctrine because we had
already determined the State was not entitled to judgment as
a matter of law due to outstanding factual issues.
law of the case doctrine, we do not reconsider an issue
previously decided in an appellate decision. State v.
Ragland, 812 N.W.2d 654, 658 (Iowa 2012); State v.
Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987). The doctrine
stems from "a public policy against reopening matters
which have already been decided." Bahl v. City of
Asbury, 725 N.W.2d 317, 321 (Iowa 2006). "It is a
rule which provides that the legal principles announced and
the views expressed by a reviewing court in an opinion, right
or wrong, are binding throughout further progress of the case
upon the litigants, the trial court and this court in later
appeals." Grosvenor, 402 N.W.2d at 405.
"Thus, issues decided by an appellate court generally
cannot be reheard, reconsidered, or relitigated in the trial
court." United Fire & Cas. Co. v. Iowa Dist.
Ct., 612 N.W.2d 101, 103 (Iowa 2000).
are exceptions to the law of the case doctrine, for example,
when (1) the law has been changed by legislative enactment;
(2) the law has been clarified by judicial decisions
following remand; or (3) different facts are presented on
retrial. Id. at 103-04. As noted above, after our
decision, the Iowa Supreme Court filed Dindinger,
860 N.W.2d at 571-72, which clarified the law concerning the
continuing violation doctrine in discrimination cases. Based
on Dindinger, our ...