IN THE COURT OF APPEALS OF IOWA

No. 21-0416

Filed June 15, 2022

BYRON KUEHL,

Plaintiff-Appellant,

vs.

TEGRA CORPORATION and DOUGLAS PALMER and JAMES PALMER, 

Individually and in their Corporate Capacities,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, 

Judge.

Byron Kuehl appeals a summary judgment ruling. AFFIRMED.

Mark D. Sherinian and Emily E. Wilson of Sherinian & Hasso Law Firm, Des 

Moines, for appellant.

Michele L. Brott and Margaret A. Hanson of Dentons Davis Brown PC, Des 

Moines, for appellees.

Heard by May, P.J., and Greer and Chicchelly, JJ.
2

MAY, Presiding Judge.

Byron Kuehl brought an action for wrongful termination against his former 

employer, Tegra Corporation (Tegra); its president, Douglas (Doug) Palmer; and 

its vice-president, James (Jim) Palmer.1 Kuehl appeals the district court’s rulings 

that (1) an email exchange with the defendants’ counsel was not admissible and 

(2) the defendants were entitled to summary judgment. We affirm.

I. Background Facts and Prior Proceedings

The following facts are undisputed.

In 2015, Kuehl began working for Big Soo terminal (Big Soo), which is 

owned by Tegra. Big Soo is a “barge, rail[,] and truck terminal engaged in 

warehousing and distribution.” While at Big Soo, Kuehl worked as the assistant 

manager. As assistant manager, Kuehl’s duties related to operations and 

personnel management, including coordinating safety and providing safety 

materials. Kuehl felt responsible for safety. He considers himself a safety expert.

Kuehl reported directly to general manager Kevin Knepper, who had been 

employed by Big Soo since 1983. Jim and Doug intended for Kuehl to learn the 

business and take over the general manager role when Knepper eventually retired.

On March 28, 2018, Kuehl was away from the terminal at a safety 

conference. That day, Knepper directed some employees, including Brian 

McCormick, to move some rail cars. But the rail cars collided with some stationary 

 

1 We will refer to Tegra, Doug, and Jim individually as needed throughout this 

opinion. Our references to “the defendants” are to Tegra, Doug, and Jim 

collectively.
3

cars. McCormick died in the accident. Kuehl was upset about McCormick’s death 

because they were friends. So Kuehl requested counseling, and Tegra paid for it.

Following the accident, the Iowa Occupational Safety and Health 

Administration (IOSHA) conducted an investigation. IOSHA interviewed Kuehl 

along with four other Big Soo employees in March and April as a part of the 

investigation. Kuehl spoke out about Big Soo during his interview. However, the 

IOSHA interviews were confidential.

On August 6, Doug, Jim, Knepper, and Kuehl met with the director of 

IOSHA, and the director was angry. Following the meeting, Doug wondered what 

the employees said during their interviews with IOSHA. Doug believed an 

employee or employees gave “bogus” information during the investigation. After 

that, Kuehl was afraid that if he reported something to IOSHA, it would jeopardize 

his career.

Following McCormick’s death and the IOSHA investigation, Big Soo 

changed its approach to workplace safety. Kuehl made several suggestions on 

how to improve safety, and many of those suggestions were implemented. On

Kuehl’s recommendation, Big Soo appointed a new safety manager. Big Soo 

started to hold “Safety 10” meetings to address safety concerns. It drafted new 

safety policies and increased employee safety training. Big Soo also promoted a 

new safety compliance officer on Kuehl’s suggestion. And Big Soo held weekly 

“Toolbox Talks” to discuss safety. Tegra also hired a safety consultant. The safety 

consultant recommended Big Soo develop a more strategic approach to establish 

a sustainable safety culture and suggested a four-step plan to achieve that goal. 
4

During his work with the company, the safety consultant never saw management 

reject or resist a safety initiative.

Meanwhile, the relationship between Knepper and Kuehl soured following 

McCormick’s death. Kuehl was upset with Knepper because he believed 

McCormick’s death occurred because he was following a directive from Knepper. 

Kuehl found it difficult to respect Knepper because of his perception of Knepper’s 

approach to safety. Communication between the two men was largely limited to

email communication. In summer 2018, an employee who reported to both 

Knepper and Kuehl told Jim there was a problem between the two men. At another 

point, a different employee stated it was difficult to show respect to both Knepper 

and Kuehl because one would have to hope Kuehl wouldn’t hold it against them. 

At some point, Kuehl referred to Knepper as “numb nuts” and “blockhead.” 

By November, Kuehl talked to Jim and Doug about the ongoing tension 

between himself and Knepper. Doug told Kuehl it was “time to knock the icicles 

off” his relationship with Knepper. Doug believed Kuehl was “wallowing in the 

accident.” And Jim made it one of his three main goals for 2019 to improve Kuehl 

and Knepper’s relationship. So he decided to start regular one-on-one meetings 

to work towards that goal. 

But in January 2019, Knepper emailed Doug and Jim to inform them that 

Kuehl 

has been unwilling to speak to me other than to get absolute critical 

information or to point out my shortcomings. All of his conversations 

with me have been terse. It is no secret that I hate conflict. I will do 

most anything to avoid it until things go too far and I blow-up, but I 

am working on that. So, I have passively accepted the way [Kuehl] 

is treating me. [Kuehl] and [I] will need to work closely developing 

and implementing the safety program. A management transition will 
5

require open dialog. Neither of these components will succeed in the 

current state of communication between [Kuehl] and [me]. We have 

to address this and act on it now. We have too much going and too 

much at stake. I am willing to do whatever it takes for [Kuehl] and 

[myself] to move into an acceptable working environment. We don’t 

have to carry-on with small talk but we need to be able to work 

together with unimpeded communication as we transition together. 

[Kuehl] needs to grasp this concept or something like it. I am open 

to discuss any options.

At the end of February, Knepper emailed Kuehl stating:

You have not spoken to me, (if you speak to me at all) in a civil tone 

for months. You have made it very difficult for me to communicate 

with you. I am seeing a therapist to help me with issues. We talk 

about you not talking to me a lot. He suggested a conflict 

management tool, Feelings, Facts and Environment. I have been 

working on laying this out for a few months. I can’t kick this down the 

road any longer.

Kuehl responded, “You claim I’ve made it difficult for you to communicate with me 

yet this is the first attempt you’ve made to address a situation that began over (11) 

months ago. I’ve never denied you a chance to discuss this.” Knepper responded 

Sometime after that you stopped talking to me at all. I took that as a 

stay clear from you. So I have. I mentioned that I am not good at 

dealing with conflict. It has taken me 11 months to get to this point 

where we can effectively implement the safety program and the 

transition of me retiring.

Kuehl informed Knepper, “I have quite the laundry list of things that you need to 

hear from me man to man. This will not be pleasant and isn’t the kind of thing that 

should be emailed. I’ll let you know when I’m ready to discuss.” Then Kuehl 

emailed Jim stating that his latest email to Knepper was “unintentionally rude and 

demanding” and requested Jim arrange a meeting for them with a mediator.

Kuehl also met with Jim multiple times. They discussed the timeframe for 

safety improvements, and Kuehl informed Jim of times Knepper failed to wear 

safety glasses, carry a radio, or announce himself. He also informed Jim that 
6

Knepper operated new equipment without proper training and did not enforce 

safety rules. 

Kuehl recommended mental-health therapist Carolyn Phillips to Jim for 

counseling between Kuehl and Knepper. So Jim hired Phillips to help with 

Knepper and Kuehl. Phillips met with Kuehl two times, Knepper one time, and 

both men together one time. Following the sessions, Phillips reported to Jim that 

Kuehl felt he needed to limit his communication with Knepper to emails. And when 

face-to-face communication was necessary, Jim would also need to be present. 

On May 3, an employee texted Kuehl about work he was uncomfortable 

completing due to the height of the work. Kuehl went to observe the work and 

noted the employee was wearing one safety lanyard. Kuehl then sent an email 

about the work to Knepper. Kuehl also photographed the work and then took the 

employee a second safety lanyard. A few days later, Kuehl emailed Knepper about 

the work and described it as a “near miss” and that he believed that “peoples’ lives 

[were] in jeopardy.” Knepper forwarded the email to Jim and Doug stating in part, 

“Guys, I can’t continue to work like this. I am nearly sick to my stomach every time 

I drive to work or even think about encountering [Kuehl].” 

Also in May, Kuehl requested a $12,000 raise.2 At the end of the month,

Jim and Doug met with Kuehl. They offered Kuehl an immediate $4000 raise and 

an additional $8000 if certain learning goals were met in the next sixty to ninety 

days. Five learning goals were provided to Kuehl including one requiring him to 

not “trash talk” Knepper at an upcoming conference. Based on Kuehl’s body 

 

2 Kuehl had already received a four percent raise in January. 
7

language, Doug believed Kuehl was agitated by the proposal.3 Kuehl did not 

immediately accept the offer and instead decided to consider it. They all agreed 

to meet again on June 4 to discuss the proposal.

Jim and Doug became concerned Kuehl would issue them an ultimatum 

requiring them to choose between himself and Knepper.4 So they obtained a 

severance agreement from their attorney in the event Kuehl did not accept their 

terms.

Kuehl arrived at the June 4 meeting with prepared remarks and a list of his 

accomplishments, which he read aloud. Kuehl requested that they discuss the 

timeline for his transition to general manager and wanted to know if one of the 

company’s customers told them that he was trash-talking Knepper. He also stated 

he believed the requirement that he not trash-talk Knepper amounted to “a 

personal attack,” which he characterized as “[a]n unfounded concern” that “hardly 

seems part of a performance evaluation, let alone a basis to refuse a raise 

request.” Jim was concerned who Kuehl would blame or shun next. So Jim told 

Kuehl he did not see how they could move forward together. Jim handed Kuehl 

the severance package even though Kuehl never issued an ultimatum. 

In October, Kuehl brought this action for wrongful termination in violation of 

public policy. Specifically, Kuehl alleged he had been terminated because he 

reported safety violations in violation of the “public policy articulated in” Iowa Code 

section 88.1 (2019). Because Kuehl intended to introduce email communication 

 

3 Kuehl agrees Doug described him in this way but denies Doug’s description of 

his behavior.

4 Kuehl claims their concerns were not reasonable.
8

between Doug and Tegra’s attorney, Kuehl moved for an advanced ruling on the 

admissibility of the evidence. Kuehl argued (1) the communication did not amount 

to legal advice, (2) Doug waived attorney-client privilege by forwarding the email 

thread to Kuehl and Knepper, and (3) the court should apply the crime-fraud 

exception to conclude the communication is not privileged. For their part, the 

defendants argued the emails were protected by attorney-client privilege. The 

defendants also moved for summary judgment. The district court heard oral 

argument on both matters but issued separate rulings. The court determined the 

email communication was protected by attorney-client privilege. The court also 

granted the defendants’ motion for summary judgment.

Kuehl appeals both rulings.

II. Email Communication

We begin by considering Kuehl’s arguments regarding the admissibility of 

Doug’s email communication with Tegra’s attorney.5 

A. Scope and Standard of Review

“Our standard of review for a ruling on a statutory evidentiary privilege is for 

the correction of errors at law.” State v. Weeks, No. 13-1231, 2014 WL 5243359, 

at *2 (Iowa Ct. App. Oct. 15, 2014) (citing State v. Anderson, 636 N.W.2d 26, 30 

(Iowa 2001)). “Our standard of review for the admissibility of evidence alleged to 

be privileged is for an abuse of discretion.” Id. (quoting Anderson, 636 N.W.2d at 

 

5 We note there is no dispute an attorney-client relationship existed between Tegra 

(or Doug as Tegra’s president) and counsel who represented Tegra during the 

IOSHA investigation.
9

30). “There is an abuse of discretion when the court’s discretion is exercised on 

grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Id.

B. Discussion

“Iowa law has long recognized the common law privilege against the 

disclosure of confidential communications between attorney and client.” Laurie 

Kratky Doré, Iowa Practice Series: Evidence § 5.502:1 (Nov. 2021 Update) 

[hereinafter Doré]. “Stated simply, the privilege permits a client to refuse to 

disclose and to prevent any other person from disclosing confidential 

communications made by the client to procure legal advice or legal services from 

an attorney.” Id. This privilege is codified in Iowa Code section 622.10. It provides:

A practicing attorney . . . who obtains information by reason 

of the person’s employment . . . shall not be allowed, in giving 

testimony, to disclose any confidential communication properly 

entrusted to the person in the person’s professional capacity, and 

necessary and proper to enable the person to discharge the 

functions of the person’s office according to the usual course of 

practice or discipline.

Iowa Code § 622.10(1). 

1. For the purpose of legal advice 

Kuehl first argues that the email thread is not protected by attorney-client 

privilege “because it was not made for the purpose of receiving legal advice.” See 

Doré § 5.502:2 (“[I]n order for an attorney-client relationship to fall within the 

privilege, the consultation with the lawyer must be made with the contemplation of 

securing legal advice or representation. . . . It is generally accepted that the 

communications from the attorney to the client will also be encompassed by the 

privilege, at least where the communications would directly or indirectly reveal the 

confidences of the client.”). The email thread related to the August 6, 2018 meeting 
10

with the IOSHA director. Kuehl notes the meeting itself was not confidential. So, 

he reasons, the subsequent communication discussing the meeting was not 

necessarily for the purpose of securing legal advice. And he notes Doug initially 

stated in his deposition that he “never thought of it as legal advice.”

However, we have reviewed the email thread and conclude the 

communication was made for the purpose of receiving legal advice. In the first 

email, Doug listed what he perceived as inaccuracies from the meeting and asked

what the next steps will be. Counsel responded with an answer. Then Doug 

inquired about an IOSHA timeline, which counsel confirmed. This communication 

was all about the IOSHA investigatory process for which counsel was representing 

Tegra. 

2. Waiver

Next, Kuehl argues Doug waived any privilege by forwarding the email 

thread to Knepper and Kuehl. However, privilege is not waived when it is “not 

disseminated beyond those persons who, because of the corporate structure, need 

to know its contents.” Keefe v. Bernard, 774 N.W.2d 663, 672 n.9 (Iowa 2009) 

(quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1978)). 

Kuehl contends that the emails contained no information that Knepper and Kuehl 

needed to know. We disagree. Both Knepper and Kuehl were a part of the IOSHA 

investigation and attended the August 6 meeting. The email thread informed them 

what would happen next and when to expect another IOSHA inspection at Big 

Soo—critical information for the Big Soo general manager and assistant manager 

who headed up safety at the terminal. So we conclude Doug did not waive the 

attorney-client privilege by forwarding the email thread to Knepper and Kuehl.
11

3. Crime-fraud exception

Finally, Kuehl argues we should extend the crime-fraud exception to torts 

and conclude it applies to this case. “It is the purpose of the crime-fraud exception 

to the attorney-client privilege to assure that the ‘seal of secrecy’ between lawyer 

and client does not extend to communications ‘made for the purpose of getting 

advice for the commission of a fraud’ or a crime.” United States v. Zolin, 491 U.S. 

554, 563 (1989) (citations omitted). “Because the attorney-client privilege benefits 

the client, it is the client’s intent to further a crime or fraud that must be shown.” In 

re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 642 (8th Cir. 2001).

Kuehl asserts the crime-fraud exception would apply here because Doug 

allegedly forwarded the email thread “in retaliation for [Kuehl’s] interview with 

[IOSHA] in violation of Iowa Code [section] 88.9(3).”6 Kuehl claims that—by 

forwarding the email thread—Doug made Kuehl aware that Kuehl’s cooperation 

with IOSHA would not be tolerated and “communicated that if Kuehl complained 

outside of Tegra again, he would be terminated.” But as the defendants point out, 

Kuehl has presented no evidence besides his own speculation that Doug intended 

to warn Kuehl against cooperation with IOSHA or making external complaints. See 

Zolin, 491 U.S. at 564.

So even if we were to extend the crime-fraud exception to tort actions, it 

would not apply here. Moreover, we think it best to leave any expansion of the 

crime-fraud exception to our supreme court. Cf. Rosauer Corp. v. Sapp Dev.,

 

6

Iowa Code section 88.9(3)(a)(1) provides, “A person shall not discharge or in any 

manner discriminate against an employee because the employee . . . has testified 

. . . in any such [IOSHA] proceeding.” 
12

L.L.C., 856 N.W.2d 906, 907 (Iowa 2014) (finding it appropriate for the court of 

appeals to defer to the supreme court on whether to extend “implied warranty of 

workmanlike construction”).

III. Summary Judgment

Finally we address Kuehl’s challenge to the summary judgment ruling 

dismissing his wrongful-discharge claim.

A. Scope and Standard of Review

“We review summary judgment rulings for correction of errors at law.” Roll 

v. Newhall, 888 N.W.2d 422, 425 (Iowa 2016). Summary judgment is appropriate 

when the file shows “there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). 

“We review the evidence in the light most favorable to the nonmoving party.” 

Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007).

B. Discussion

Kuehl claims the district court erred in granting summary judgment because 

a jury could find that his “participation in the [IOSHA] interview and/or [his] repeated 

internal safety complaints were the determining factor in his termination.” The 

defendants retort, “Summary judgment is not a rehearsal; it was [Kuehl]’s time to 

‘put up’ his evidence not mere allegations of a conspiracy premised on speculation 

and attorney argument.”

Kuehl claims he was wrongfully discharged in violation of public policy. To 

establish such a claim, Kuehl must establish: “(1) engagement in a protected 

activity, (2) adverse employment action, and (3) a causal connection between the 

two.” Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 300 (Iowa 1998). 
13

Only the third element is in dispute. “The causation standard in a common-law 

retaliatory discharge case is high.” Id. at 301. To establish a causal connection, 

a “plaintiff must show the protected conduct was the determining factor in the 

adverse employment action.” Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 898 

(Iowa 2015). “[A] determining factor is one that tips the balance in an employment 

decision.” Id. “In order to be the determining factor, it is not necessary the 

protected conduct be ‘the main reason behind the decision,’ but it must be the 

factor that makes the difference in the employment outcome.” Id. (citation omitted). 

So we examine the evidence to determine whether a reasonable fact finder could 

conclude that either Kuehl’s participation in the IOSHA investigation or his safety 

recommendations were the determinative factor in Tegra’s decision to terminate 

him. See Teachout, 584 N.W.2d at 302. 

Kuehl points to a statement Jim purportedly made shortly before Kuehl’s 

termination wherein Jim said he was concerned he would also end up “sideways” 

with Kuehl should another workplace accident occur. He highlights Jim’s concern 

that Kuehl would “trash talk” Knepper at a trade conference. He claims these 

statements give insight to Jim’s thinking. To the extent these statements provide 

any insight, though, they do not provide support for Kuehl’s wrongful discharge 

theory. Instead, if anything, they demonstrate Jim was concerned Kuehl was 

combative and held animosity against his co-workers.

Kuehl also points to his concerns about the “near miss” on May 3, 2019, 

and other times he reported safety issues. He claims the defendants were not 

receptive to his concerns. But Kuehl does not provide any evidentiary support for 

his assertion. To the contrary, the record shows that the defendants were 
14

receptive to Kuehl’s safety suggestions and implemented policies to address his 

concerns. 

He also notes Doug told him it was “time to knock the icicles off” his 

relationship with Knepper. Kuehl contends his relationship with Knepper was 

deteriorating due to his continued safety concerns. And to the extent he was 

terminated due to his poor relationship Knepper, the root cause of the poor 

relationship was Kuehl’s continued safety concerns. So he reasons they are “two 

sides of the same coin.” But we think this claim ignores the obvious: the 

relationship was deteriorating due to the manner in which Kuehl communicated his 

safety concerns. He was the one who required communication be through email 

or in the presence of the company vice-president. He was the one who called 

Knepper names like “numb nuts” while at work.7 Kuehl cannot dress up 

insubordination as protected conduct to immunize himself from negative

repercussions for his actions.

With respect to Kuehl’s participation in the IOSHA investigation, we agree 

with the district court that Kuehl cannot establish causation between his interview 

and termination. Because the content of Kuehl’s interview was confidential, the 

defendants had no idea that Kuehl spoke out against Big Soo or its safety 

practices. Cf. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 289 (Iowa 

2000) (“[I]f the employer has no knowledge the employee engaged in the protected 

activity, causation cannot be established.”). Nor did the defendants take steps to 

 

7 Kuehl complains that Knepper wasn’t also blamed for going along with his 

preferred communication method and Knepper did not take affirmative steps to 

reconcile with Kuehl between March 2018 and February 2019. But we do not think 

that creates a fact issue as to causation.
15

try to discover the content of Kuehl’s interview. And Kuehl provides nothing more 

than conjecture to suggest the defendants suspected him as the source of possible 

“bogus” information provided during the investigation.

Considering the evidence in the light most favorable to Kuehl, we conclude 

he failed to provide any evidence for a reasonable fact finder to conclude Kuehl’s 

participation in the IOSHA investigation or his ongoing safety concerns were the 

determinative factor in his termination. So we conclude the district court correctly 

granted summary judgment.

AFFIRMED.