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Wyngarden v. State of Iowa Judicial Branch

Court of Appeals of Iowa

July 18, 2018

DON WYNGARDEN, Plaintiff-Appellant,

          Appeal from the Iowa District Court for Wapello County, Sherman W. Phipps, Judge.

         Plaintiff appeals the district court's grant of a directed verdict for defendants in his age discrimination action. REVERSED AND REMANDED.

          Steven Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for appellant.

          Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and Julie J. Bussanmas, until her withdrawal, Assistant Attorneys General, for appellees.

          Heard by Vogel, P.J., and Doyle and Bower, JJ.

          BOWER, JUDGE.

         Don 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.

         I. Background Facts & Proceedings

         Wyngarden, who was born in 1951, was employed as a juvenile court officer (JCO) by the Iowa Judicial Branch.[1] 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.

         On 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 30.

         On July 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, [2] raising claims of age discrimination, retaliation, and loss of benefits.

         The 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 judgment.

         Wyngarden 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.

         On 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.

         Wyngarden 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.

         In 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 "similarly situated."

         A jury 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.

         Wyngarden 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.

         Wyngarden 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."

         Stephanie 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.

         Reese 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 did.[3]

         At the 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.

         II. Law of the Case Doctrine

         Wyngarden 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.

         In the 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).

         There 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 ...

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