IN THE COURT OF APPEALS OF IOWA

No. 15-0166

Filed December 23, 2015

AMY WUSK,

Plaintiff-Appellant, 

vs. 

EVANGELICAL RETIREMENT HOMES, 

INC., d/b/a VALLEY VIEW VILLAGE 

and VALLEY VIEW VILLAGE ASSISTED

LIVING, INC.,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Dennis J. Stovall, 

Judge. 

A plaintiff appeals from a district court ruling granting summary judgment 

in favor of the defendants on her wrongful-discharge claim. AFFIRMED. 

Mark W. Thomas of Grefe & Sidney, P.L.C., for appellant.

Mitchell R. Kunert and Katie L. Graham of Nyemaster Goode, P.C., Des 

Moines, for appellees.

Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2

MULLINS, Judge.

Amy Wusk appeals from a district court ruling granting summary judgment 

in favor of Evangelical Retirement Homes, Inc., d/b/a Valley View Village (Valley 

View).1 She asserts she was wrongfully terminated from her employment with 

Valley View in retaliation for pursuing a workers’ compensation claim. We affirm. 

I. Background Facts and Proceedings

Wusk began working for Valley View, an assisted living facility, as a parttime on-call Certified Nursing Assistant (CNA) in February 2011. In her position, 

Wusk did not have regularly-scheduled shifts but was instead required to 

schedule her own hours pursuant to the terms of the On-Call Nursing Pool 

Agreement.2 Wusk scheduled shifts with Beatrix Baker, Valley View’s Quality 

 

1 Valley View Village and Valley View Village Assisted Living, Inc. are separate and 

distinct entities. Wusk admitted she was never employed by Valley View Village 

Assisted Living, Inc. As a result, the district court dismissed Valley View Village Assisted 

Living, Inc. from this suit. See Travillion v. Heartland Pork Enters., Inc., 2003 WL 

21464807, at *3 (Iowa Ct. App. June 25, 2003) (affirming the dismissal of a plaintiff’s 

claim against his former supervisor because “Iowa Code chapter 85 applies only to 

employers”). Wusk does not appeal the district court’s dismissal of Valley View Village 

Assisted Living, Inc. 

2 Wusk executed two Pool Agreements with Valley View, one in February 2011 and one 

in April 2012. Both agreements contained the following language: 

5. Pool employees MUST BE AVAILABLE, RESPOND TO CALL and 

WORK a minimum of: 

 One holiday per calendar year

 One twelve (12) hour shift per month

Pool employees are responsible for coordinating their shift availability with 

the staffing coordinator. If you cancel a shift that was to meet the above 

requirements, you must make up that shift within two weeks. If the 

missed shift was for a holiday, you must work the next holiday. 

Employees will be excused from the above hours requirement if there are 

no hours available. 

. . . .

8. Failure to follow the terms of this agreement will be considered a 

voluntary quit. 
3

Assurance Manager and Scheduling Coordinator. Generally, on-call CNAs were 

required to sign up for hours in person or by calling Baker. On occasion, Baker 

would contact employees if Valley View still had available hours or if it was shortstaffed and needed additional help that day. If an on-call CNA failed to meet the 

requirements of the Pool Agreement, it resulted in a voluntary quit on behalf of 

the employee. 

On November 16, 2011, Wusk injured her arm while helping another 

employee dress a patient. She claims she informed the nurses on duty that she 

had injured her arm but was not provided an accident report form to complete. 

The following day, Wusk visited the doctor. She also reported her injury to Brad 

Cole, Valley View’s Executive Director.3 Wusk reported to Valley View for her 

last scheduled shifts on November 18 and 19, 2011. 

In December 2011, Wusk began treatment for her arm injury and was 

placed on lifting restrictions until November 5, 2012. Wusk stated she remained 

in contact with her supervisor, Karen Pewick, Valley View’s Director of Nursing, 

throughout this time providing paperwork relating to her restrictions and notifying 

Pewick when her restrictions were modified. She claims she notified Pewick 

when her lifting restriction increased to fifteen pounds and requested light-duty 

work, but Valley View never offered her light-duty work. 

 

9. This agreement shall control to the extent it conflicts with the Valley 

View Village personnel policy handbook. 

3 Valley View’s Employee Handbook required an employee to notify her supervisor within 

twenty-four hours if she experienced a work-related injury. Wusk did not report her 

injury within this timeframe, but Cole submitted her report anyway. 
4

On June 27, 2012, Wusk filed a workers’ compensation claim relating to 

the November 16 injury to her arm. 

On November 5, 2012, Wusk was released from all of her restrictions and 

cleared to return to regular work. That same day Wusk notified Pewick of her 

release and stated she was available for work. Wusk also left a message for 

Baker conveying the same and inquiring about available hours. Baker returned 

Wusk’s call within a day and left a message for Wusk. Wusk did not return 

Baker’s call or speak with anyone else from Valley View following these contacts

until after she was terminated in August 2013. 

On July 9, 2013, Wusk settled her workers’ compensation claim with 

Valley View. 

In August 2013, Shelly Barryhill, the Business Manager for Valley View, 

conducted an audit of the on-call nursing staff. During the audit she discovered 

Wusk had not scheduled any hours since November 2011 despite having been 

released to return to work in November 2012. Barryhill and Pewick decided to 

terminate Wusk from Valley View’s employment for failing to follow the terms of 

the Pool Agreement. Cole subsequently approved this decision.4 On August 28, 

2013, Valley View terminated Wusk’s employment. Wusk stated she visited 

Valley View multiple times following her termination and attempted to contact 

Barryhill to find out why her employment had been terminated, but Barryhill 

refused to provide her any information or documentation saying what type of 

 

4 Valley View submitted affidavits from Barryhill, Pewick, and Cole at summary judgment 

stating none of them were aware of Wusk’s settlement at the time the decision to 

terminate her employment was made. 
5

employee Wusk was—which Wusk had hoped would assist her in finding new 

employment. 

On January 2, 2014, Wusk filed this action, alleging common-law 

retaliatory discharge. On October 28, 2014, Valley View moved for summary 

judgment prior to the close of discovery. On December 9, 2014, the court held a 

hearing on Valley View’s motion. On January 15, 2015, the district court granted 

Valley View’s motion for summary judgment. The court held Wusk had failed to 

establish a causal connection between the filing of her workers’ compensation 

claim and later termination. The court found Wusk’s claim that Valley View 

employees had a negative demeanor toward her unconvincing and her 

assertions that it was “common knowledge” at Valley View that employees would

be fired if they submitted a workers’ compensation claim were inadmissible and 

vague. It further found that even if Wusk could rely on the settlement of her 

workers’ compensation claim in July 2013 as the basis for retaliatory motive, 

temporal proximity alone was not enough to establish causation. The court also 

noted Valley View had a legitimate overriding business justification for 

terminating Wusk’s employment: “her failure to coordinate work shifts from 

November 2012 to August 2013.” The court concluded: “No reasonable fact 

finder could conclude [Wusk] was terminated based on filing or settling her 

workers’ compensation claim, rather than failing to schedule work shifts for nine 

months.” Wusk appeals. 

II. Standard of Review
6

We review a trial court’s grant of summary judgment for corrections of 

errors at law. Iowa R. App. P. 6.4. Summary judgment is appropriate when 

there are no genuine issues of material fact and the moving party is entitled to 

judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Goodpaster v. Schwan’s 

Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014). The burden is on the moving 

party and we view the record in the light most favorable to the nonmoving party. 

Goodpaster, 849 N.W.2d at 6. “However, the nonmoving party may not rest 

upon the mere allegations of his pleading but must set forth specific facts 

showing the existence of a genuine issue for trial.” Hlubek v. Pelecky, 701 

N.W.2d 93, 95 (Iowa 2005) (citing Iowa R. Civ. P. 1.981(5)). 

III. Analysis

Iowa law adheres to the common-law employment-at-will doctrine, which 

provides “the employment relationship is terminable by either party ‘at any time, 

for any reason, or no reason at all.’” Fitzgerald v. Salsbury Chem., Inc., 613 

N.W.2d 275, 280 (Iowa 2000) (quoting Phipps v. IASD Health Servs. Corp., 558 

N.W.2d 198, 202 (Iowa 1997)). However, Iowa recognizes a public-policy 

exception for employees alleging they were wrongfully discharged for filing a 

workers’ compensation claim. See Springer v. Weeks & Leo Co., 429 N.W.2d 

558, 560 (Iowa 1988) (citing Iowa Code § 85.18 (1987) (“No contract, rule, or 

device whatsoever shall operate to relieve the employer, in whole or in part, from 

any liability created by this chapter except as herein provided.”)). 

In order to establish a prima facie case of retaliatory discharge, Wusk 

“must establish (1) engagement in a protected activity, (2) adverse employment 
7

action, and (3) a causal connection between the two.” Rivera v. Woodward Res. 

Ctr., 865 N.W.2d 887, 894 (Iowa 2015) (quoting Teachout v. Forest City Cmty. 

Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998)). For purposes of summary 

judgment, both parties agreed Wusk could establish the first two elements of her 

claim. Thus, the issue before us is whether the district court erred in determining 

as a matter of law that no causal connection existed between Wusk’s filing a 

workers’ compensation claim in June 2012 or her settlement of the claim in July 

2013 and her termination from employment with Valley View in August 2013. 

The causation standard in a retaliatory-discharge case is high. Teachout, 

584 N.W.2d at 301. In order to prevail on her claim, Wusk must demonstrate her 

filing of the workers’ compensation claim “was the determining factor in the 

adverse employment action.”5 Rivera, 865 N.W.2d at 898; see Phipps, 558 

N.W.2d at 203. A “determining factor” is one that “tips the scales decisively one 

way or the other.” Teachout, 584 N.W.2d at 302 (quoting Smith v. Smithway 

Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1990)). 

Wusk argues she established a genuine issue of material fact to be 

considered by a jury by presenting substantial evidence that (1) Valley View 

failed to provide her with hours, (2) Valley View administrators displayed a 

negative attitude toward her following her injury in November 2011, and (3) 

Valley View had a reputation for terminating employees injured on the job. She 

 

5 Our supreme court recently clarified that a plaintiff in a retaliatory-discharge case is not 

required to prove the lack of an overriding business justification. Rivera, 865 N.W.2d at 

898. The employee must prove that the protected conduct was the determining factor, 

and “evidence related to an employer’s legitimate business reasons” is relevant. Id. at 

898–99. Indeed, “Iowa law does not impose liability on an employer when the 

determining factor was a legitimate business reason.” Id. at 898. 
8

asserts the district court assumed the functions of a jury by focusing solely on the 

terms of the Pool Agreement instead of viewing the evidence in the light most 

favorable to her, and improperly weighing evidence and evaluating the credibility 

of witnesses.6 

Wusk contends the district court ignored evidence that Valley View failed 

to provide her work, including light-duty work following the modification of her 

lifting restrictions. She asserts she fulfilled the requirements of the Pool 

Agreement, but Valley View ignored her request to return to work for months and 

waited over a year from the filing of her workers’ compensation claim to fire her 

so that it could avoid a claim of retaliatory discharge. 

Pursuant to the terms of the Pool Agreement, Wusk was required to 

contact Baker to schedule her hours. On November 5, 2012, the day Wusk was 

released to return to regular work, she contacted both Pewick, her immediate 

supervisor, and Baker, the scheduling coordinator, asking to be put on the 

schedule. Within a day, Baker returned Wusk’s call and left a message. 

Although Wusk testified she attempted to call Baker again, her testimony was not 

specific either as to how many times or when she tried calling Baker. Giving 

every benefit of doubt to Wusk, if she did make any attempts to call Baker, they 

were close in time to the initial November contact. Wusk’s testimony raises no 

 

6 Wusk argues questions of causation and motive are factual in nature and must be 

resolved by a jury. See Fitzgerald, 613 N.W.2d at 282. However, she fails to 

acknowledge that retaliatory-discharge cases should be decided at summary judgment 

when a plaintiff has failed to establish a question of material fact for the jury regarding 

causation. See, e.g., Teachout, 584 N.W.2d at 303 (finding summary judgment 

appropriate when the plaintiff “failed to produce sufficient evidence of a causal 

connection between her firing and her intent to report child abuse”). 
9

likelihood that during at least six months preceding her termination she made any 

attempt to contact Baker or anyone else at Valley View regarding scheduling 

hours to work. 

Nine months after she was released to work without restrictions, Valley 

View discovered Wusk had failed to follow the terms of the Pool Agreement, 

resulting in a voluntary quit. Pewick and Barryhill both testified it was Wusk’s 

failure to fulfill her obligations under the Pool Agreement that led to their decision 

to terminate Wusk in August 2013. Cole stated that it was upon this basis that he 

approved the termination decision. We agree with the district court in finding 

Wusk’s “own failure to fulfill her obligation of coordinating shifts with the staffing 

coordinator does not evince a retaliatory motive on the part of the employer.” 

Thus, Wusk did not generate a genuine issue of material fact on this issue. 

Wusk further contends the district court erred in determining that evidence 

of the negative treatment she received from Valley View administrators after her 

injury in November 2011 and the filing of the workers’ compensation claim in 

June 2012 was vague. She claims Cole, the executive director, seemed 

“distant,”

7

the work “atmosphere was different,” no one at Valley View seemed 

very helpful, and Barryhill seemed to avoid Wusk after she was terminated. This 

court has held that mere generalities of a negative change in the way an 

employee was treated after filing a workers’ compensation claim are insufficient 

to prove that the filing of the claim was a determining factor in a subsequent

 

7 Despite Wusk’s claim that Cole seemed to not want to help her, the record shows Cole 

submitted her injury report even though Wusk reported the injury outside of the twentyfour hour reporting deadline provided for in the employee handbook. 
10

adverse employment action. See McMahon v. Mid-Am. Constr. Co. of Iowa, No.

99-1741, 2000 WL 1587952, at *4 (Iowa Ct. App. Oct. 25, 2000). We agree with 

the district court that there is no genuine issue of material fact concerning the 

effect of how the perceived negative treatment Wusk experienced after her injury 

evinces a retaliatory motive. 

Next, Wusk argues the district court erred in dismissing evidence of 

“common knowledge” among Valley View employees that the filing of a workers’ 

compensation claim would result in termination because it was inadmissible 

hearsay. Wusk did not support her allegations by submitting affidavits from 

witnesses or otherwise presenting evidence outside of her own testimony of what 

other employees told her. Such evidence is hearsay and cannot be considered

at summary judgment. See Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 

96 (Iowa 2012) (“[T]he court should only consider ‘such facts as would be 

admissible in evidence’ when considering the affidavits [or testimony] supporting 

and opposing summary judgment.” (quoting Iowa R. Civ. P. 1.981(5))). Wusk

contends this evidence is not hearsay because discovery was not yet closed at 

the time of the summary judgment hearing, and therefore, she can still call 

witnesses to testify at trial about the negative treatment of workers’ 

compensation claimants.8 Our rules clearly state the nonmoving party “may not 

 

8 Wusk testified in her deposition that a coworker named Sharron had observed other 

Valley View employees not receiving financial assistance for work-related injuries, and 

was afraid to report a back injury for fear of losing her job. Wusk discussed another 

coworker named Carlos who was injured at work and not compensated by Valley View, 

however, Wusk did not know whether Carlos still worked for Valley View. She also 

discussed an unnamed woman who had hurt her knee at work and was later fired, but 
11

rest upon the mere allegations or denials in the pleadings,” Iowa R. Civ. P. 

1.981(5), but “must set forth specific facts showing the existence of a genuine 

issue for trial,” Hlubek, 701 N.W.2d at 95; see also Hammel v. Eau Galle Cheese 

Factory, 407 F.3d 852, 859 (7th Cir. 2005) (“Summary judgment is not a dress 

rehearsal or practice run, it is the put up or shut up moment in a lawsuit, when a 

[nonmoving] party must show what evidence it has that would convince a trier of 

fact to accept its version of the events.”). Wusk failed to set forth specific facts to 

support her allegations that Valley View had a reputation for firing employees 

who submitted workers’ compensation claims. Without such facts, she has not 

demonstrated a genuine issue of material fact. 

Additionally, Wusk claims the district court erred in rejecting her claim that 

the temporal proximity between settlement of her workers’ compensation claim 

on July 9, 2013, and her termination from employment on August 28, 2013,

evinces a retaliatory motive.9 She further complains the affidavits of Barryhill, 

Cole, and Pewick stating they were unaware Wusk’s claim had been settled in 

July 2013 are “self-serving and suspect,” and that it is unlikely these three were 

unaware of her settlement due to their positions at Valley View. She argues the 

district court erred in determining these witnesses were credible because 

credibility is not within the court’s scope of review on summary judgment. 

 

did not allege the subsequent firing was related to the employee’s engagement in any 

protected activity. 

9 Wusk did not plead that the settlement of her workers’ compensation claim in July 2013 

is the protected activity she engaged in, but rather her filing of the claim in June 2012. 

However, we acknowledge the district court ruled on this issue in its order and reach the 

issue. 
12

The fact that termination occurs after an employee has engaged in a 

protected activity is alone insufficient to establish a causal connection. Teachout, 

584 N.W.2d at 302; Phipps, 558 N.W.2d at 203 (holding that evidence of an 

employee’s engagement in a protected activity followed by his termination one 

month later, by itself, is “insufficient to generate a jury question on retaliation”). 

Wusk failed to present evidence to contradict Valley View’s affidavits from 

Barryhill, Cole, or Pewick that they were unaware her workers’ compensation 

claim had been settled. Further, the district court did not err in considering these 

affidavits. See Iowa R. Civ. P. 1.981 (providing for the use of affidavits in support 

of summary judgment motions). Therefore, Wusk has not presented sufficient 

evidence to support a conclusion that a genuine issue of material fact exists that 

could support her allegation that settlement of her workers’ compensation claim 

was the determining factor that led to her termination. 

IV. Conclusion

Upon our review of the record before us, we conclude no genuine issue of 

material fact exists in support of Wusk’s allegations that either the filing of her 

workers’ compensation claim in June 2012 or the settlement of her claim in July 

2013 was the determinative factor in Valley View’s August 2013 decision to 

terminate her employment. Therefore, we agree with the district court that 

Wusk’s retaliatory-discharge claim fails as a matter of law. 

AFFIRMED.