IN THE COURT OF APPEALS OF IOWA

No. 16-0208

Filed May 17, 2017

JOHN VETTER,

Plaintiff-Appellee/Cross-Appellant,

vs.

STATE OF IOWA, IOWA DEPARTMENT OF NATURAL RESOURCES, 

AARON LUMLEY and PAUL TAUKE,

Defendants-Appellants/Cross-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, 

Judge.

Both parties appeal following a verdict in favor of the plaintiff on his 

employment-discrimination claims. AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor 

General, David S. Steward and Julia S. Kim, Assistant Attorneys General, for 

appellants/cross-appellees.

Brooke Timmer and Whitney Judkins of Fiedler & Timmer, P.L.L.C., 

Johnston, for appellee/cross appeallant.

Heard by Doyle, P.J., and Tabor and McDonald, JJ.
2

DOYLE, Judge.

The 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.

I. Background Facts and Proceedings. 

John 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. 

In 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 activity. 

In 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 
3

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. 

The DNR 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 were necessary. 

Vetter 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.)
4

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 appropriate spaces.)

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.) 

The jury answered “yes” to questions 1 and 2, but it left question 3 unanswered.1 

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 $688,422.32. 

The 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 

 

1 During her closing argument, with regard to Question 3—the perceived-disability claim, 

Vetter’s trial counsel told the jury that:

If you have marked ‘yes’ to either Questions 1 or 2 on the verdict form, 

you don’t get to this claim because you’ve already found [Vetter] had a 

disability. You only get to this claim if you don’t think John had a 

disability. Like I said, we don’t think you’ll get to this claim.
5

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 crossappealed. 

II. Sufficiency of the Evidence.

The 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. 

A. Scope of review.

We 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. 

B. Elements of a disability-discrimination claim.

The ICRA protects employees from being discharged or otherwise 

discriminated against in their employment based on their disability. See Iowa 
6

Code § 216.1 (2013). Like its federal counterpart,2the 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).

Vetter 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).

 

2 Because the ICRA and the Americans with Disabilities Act (ADA) have common 

purposes of prohibiting disability discrimination and share similar terminology, the Iowa 

Supreme Court has “look[ed] to the ADA and underlying federal regulations in 

developing standards under the ICRA for disability discrimination claims.” Bearshield v. 

John Morrell & Co., 570 N.W.2d 915, 919 (Iowa 1997).
7

1. Whether Vetter has a disability.

The court instructed the jury that, in order to prove his disabilitydiscrimination 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 
8

permanent or long-term impact of or resulting from the impairment; 

and (4) whether the individual is impaired during episodes or flareups, 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)3).

The 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.

Lewis 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 

 

3 We note that Congress has since amended the ADA to protect a broader range of 

people. See Goodpaster, 849 N.W.2d at 8-9 (discussing the expansion of coverage 

under the Americans with Disabilities Act Amendments Act of 2008).
9

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 person’s workday.

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— 

A. Yes.

Q. —waist to crown, I think? A. Yes.

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 

50? A. Yes. He had some equipment that he had used in the past.

Ultimately, Vierling determined that Vetter has a disability under Iowa law. 

Vetter 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:
10

Q. And it was your understanding that the State believed 

John had a disability when they asked you to write the report; right? 

A. Correct, yes.

Q. That was the whole reason you were brought in; correct? 

A. Yes.

. . . .

Q. . . . You had no reason to disagree that John Vetter had a 

disability since you saw his restrictions; correct? A. Correct.

Q. Having seen his restrictions, you believe that he was 

more limited than the average person in his ability to do things like 

lift, bend, kneel, sit, stand, walk, or climb; right? A. Yes.

The State argues Vetter does not have a physical impairment that impairs 

a major life activity, citing testimony from Vetter’s coworkers that he was able to 

perform his job duties and Vetter’s own belief at that time his discharge that he 

was not disabled. However, the perception of others is not relevant to the 

question of whether a person has a disability.4 

A reasonable jury could have found the State’s evidence regarding 

Vetter’s lack of a disability was not credible and rejected it. See Kaiser v. 

Stathas, 263 N.W.2d 522, 526 (Iowa 1978) (noting a jury need not accept 

testimony that is “contrary to natural laws, inherently improbable or 

unreasonable, opposed to common knowledge, inconsistent with other 

circumstances established in evidence, or . . . contradictory within itself”). For 

instance, Paul Tauke, bureau chief of forestry for the DNR, testified that the 

average person is able to meet the physical demands of the natural resource 

technician job. He also agreed that Vetter’s restrictions limited him in his ability 

 

4 An employer can be liable for discriminating against an employee who does not have a 

disability if the employer treats the employee differently than others because it perceives 

the employee to have a disability. See Vincent v. Four M Paper Corp., 589 N.W.2d 55, 

62 (Iowa 1999). Vetter pled discrimination based on perceived disability as an 

alternative to his claims of discrimination based on his disability. However, the jury did 

not render a verdict on this claim.
11

to perform the duties of a natural resource technician without accommodation. In 

spite of that, Tauke did not believe Vetter was disabled. Aaron Lumley, who 

supervised the state nursery, likewise testified that Vetter was impaired in his 

ability to lift, kneel, sit, stand, walk, climb, bend, or squat in comparison to the 

average person. He also agreed those activities could qualify as major life 

activities. However, Lumley continued to dispute that Vetter was disabled:

Q. So still using my definition of “disability,” is it still your 

position that John is not disabled? A. At this time I was really going 

on those work restrictions. I did not consider him disabled at that 

time.

Q. And you still don’t? A. Correct.

Like Tauke, Lumley argued that it was Vetter’s work restrictions—not the 

underlying back condition that resulted in those restrictions—that prevented 

Vetter from doing his job. However, Lumley eventually admitted that if Vetter did 

not receive accommodations for his permanent restrictions, he would be 

restricted from the major life activity of working:

Q. So given the definition you and I talked about before that 

John Vetter, with those restrictions, is limited as compared to the 

average workforce, he’s disabled, didn’t we agree on that? A. . . . I 

said the work restrictions placed upon him made those things 

harder to do without accommodations, I believe.

Q. Well, let’s go back to the definition in Exhibit 1, the 

employee handbook . . . . You knew John had a physical 

impairment, he had . . . the back condition? A. I knew that John 

had permanent work restrictions.

Q. [H]is back was physically affecting his ability to do his 

job? A. His back was injured, yes.

Q. And major life activities, they give some list there, but it’s 

more comprehensive than that list. Do you know that? A. I would 

assume so, yes.

. . . .

Q. So we know he’s actually affected in his ability to walk as 

compared to the average person? A. That’s what the doctor said.

Q. And we also have agreed that the State said, “We have to 

fire you, we’re taking your job away, your ability to work, because 
12

we don’t think you can physically do the job anymore”; yes? A. He 

could physically do the job. He just had doctor’s restrictions. So 

there are portions—he could walk, right, he could bend, he could 

kneel at times, I believe.

Q. If he could physically do the job, why was he fired? A. 

Because not all the time he could because his doctor’s note said, 

“Here’s what he can work within, and I did not want any time for 

that to be violated.”

Q. So he was limited in the major life activity of working 

because you didn’t believe you could accommodate that he could 

work with those restrictions? A. I follow you. I’ll agree.

Substantial evidence supports the jury’s finding that Vetter has a disability. 

Vetter’s back condition is an injury to his musculoskeletal system that is 

permanent in nature and limits his ability to perform major life activities as 

compared to the average person. He is restricted in the manner and duration in 

which he may engage in these activities, and he is restricted from squatting 

altogether. That he could perform the essential functions of his job at the DNR 

with some accommodation speaks to whether he was qualified for his position, 

not whether he was substantially impaired. 

2. Whether Vetter was qualified for the position.

The State does not challenge the second element Vetter’s disabilitydiscrimination claims, which requires a finding that Vetter was a qualified 

employee. Even if it had, substantial evidence supports the finding Vetter was 

able to perform—and had performed—the essential functions of his job with an 

accommodation for his lifting restrictions. 
13

3. Whether Vetter suffered an adverse employment decision because 

of his disability.

Finally, to succeed on his disability discrimination claims, Vetter was 

required to show he suffered an adverse employment decision because of his 

disability. 

In most cases in which employment discrimination occurs, the

discriminatory motive for the adverse employment decision “will rarely be

announced or readily apparent.” Hamer v. Iowa Civil Rights Comm’n, 472 

N.W.2d 259, 263 (Iowa 1991). In those cases where there is no direct evidence 

that the adverse employment decision was based on disability, “evidence 

concerning the employer’s state of mind is relevant in determining what 

motivated the acts in question.” Id.; see also Casey’s Gen. Stores, 661 N.W.2d 

at 520 n.3 (noting this analysis was formulated “because direct evidence of 

discrimination is frequently unavailable, and an employee must rely on 

circumstantial evidence to establish discriminatory intent”). The employee bears 

this “initial burden of showing actions taken by the employer from which one can 

infer, if such actions remain unexplained, that it is more likely than not that such 

actions were ‘based on a discriminatory criterion illegal under the [law].’” Furnco 

Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978) (citing McDonnell Douglas v. 

Green, 411 U.S. 792, 802 (1973)). If the employee establishes this inference, 

“the burden shifts to the employer to show a legitimate nondiscriminatory reason 

for the adverse employment decision.” Casey’s Gen. Stores, 661 N.W.2d at 519-

20. “Once an employer proffers a legitimate nondiscriminatory reason, the 
14

burden shifts back to the claimant to show the reason proffered by the employer 

is pretextual.” Id. at 520. 

However, in a smaller number of cases, there is direct evidence that the 

employer based its adverse employment decision on an employee’s disability. 

See Boelman v. Manson State Bank, 522 N.W.2d 73, 79 (Iowa 1994) (articulating 

the test for cases in which an employer “relies on disability-related reasons” for 

discharging an employee); see also Vaughan v. Must, Inc., 542 N.W.2d 533, 538

(Iowa 1996) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). In 

those cases, the focus is typically on whether the employee is disabled or 

qualified for the position rather than whether the employee suffered an adverse 

employment decision based on a disability. See Boelman, 522 N.W.2d at 79. 

Cases involving direct evidence do not employ the McDonnell Douglas burdenshifting test. See id. When the employer bases an adverse employment 

decision on an employee’s disability, there is pretext for the discriminatory 

decision.

5

 See id. 

Vetter alleged two different adverse actions to support his employmentdiscrimination claims. Vetter claimed the DNR terminated him because of his 

disability. He also alleged the DNR failed to accommodate his disability. See 

Casey’s Gen. Stores, 661 N.W.2d at 521 (holding an employer’s failure to make 

 

5 Once an employee has proved the elements of a disability-discrimination claim, the 

employer may rely on an affirmative defense like undue hardship to insulate it from 

liability. Cf. Lamb v. Qualex, Inc., 33 F. App’x 49, 59 (4th Cir. 2002) (noting that once 

the plaintiff has established the elements of a discrimination case, the defendant may 

present evidence of an affirmative defense (specifically citing the affirmative defense of 

undue hardship)); Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997) 

(distinguishing an employee’s burden of establishing a reasonable accommodation 

exists as part of its burden of proof with the employer’s burden of pleading and proving 

the affirmative defense of undue hardship). 
15

a reasonable accommodation for an otherwise qualified person with a disability is 

an adverse employment action supporting a separate claim for recovery); see 

also Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002) (stating an employer 

commits unlawful discrimination if the employer does not make a reasonable 

accommodation for a known physical or mental limitation of an otherwise 

qualified individual with a disability). We consider each claim in turn.

a. The termination of Vetter’s employment.

The DNR provided only one reason for terminating Vetter. In the letter 

terminating his employment, the DNR disclosed that it was discharging Vetter 

because the cost of accommodating his restrictions would be unduly 

burdensome. Those permanent restrictions were issued because of Vetter’s

disability. Therefore, the adverse employment decision was based on Vetter’s 

disability. See Boelman, 522 N.W.2d at 78 (noting the only reason the 

defendants offered for terminating the plaintiff was disability-related where the 

plaintiff was terminated for performance and the plaintiff’s disability caused the 

poor performance). Substantial evidence supports the jury’s finding the DNR

discriminated against Vetter when it terminated him based on his disability.

b. Reasonable accommodation.

The State challenges the finding that failed to reasonably accommodate 

his disability.6 It argues Vetter failed to request an accommodation for his 

 

6

The verdict form did not ask the jury to submit a separate damage calculation on each 

individual theory of disability discrimination it found Vetter had proved. We surmise that 

both the claim regarding termination and the failure-to-accommodate claim resulted in 

the same damages. Vetter may not recover damages on each theory of liability because 

his damages flow from a single action and recovering damages under both would be 

duplicative. See Lara v. Thomas, 512 N.W.2d 777, 783 (Iowa 1994). Accordingly, our 
16

disability, claiming the permanent restrictions placed on Vetter do not equate to a 

request for accommodation. 

In interpreting comparable federal law concerning failure-to-accommodate 

claims, the Eight Circuit observed that in order to trigger the duty to make a 

reasonable accommodation, the employer must be aware that the employee has 

a disability and is seeking accommodation for that disability. See Ballard, 284 

F.3d at 962 (citing Taylor v. Phoenixville Sch. Dist., 174 F.2d 142, 158-59 (3d Cir. 

1999)); Walsted v. Woodbury Cty., 113 F. Supp. 1318, 1335 (N.D. Iowa 2000). 

Although, generally, an employee must inform an employer of a disability and the 

need for an accommodation, an express request for an accommodation is 

unnecessary when the disability and need for accommodation are obvious. See 

Walsted, 113 F. Supp. at 1335. 

Here, Vetter’s disability developed as a result of a work-related injury, of 

which the DNR was aware. When Vetter returned to work in January 2012, the 

DNR accommodated his disability. One year later, the workers’ compensation 

administrator provided the DNR with a list of permanent restrictions 

recommended as a result Vetter’s functional capacity evaluation. The DNR then 

hired two consultants to determine whether it could accommodate the 

recommended restrictions. These facts sufficiently triggered the DNR’s duty to 

make reasonable accommodations. Vetter was not required to inform the DNR

of a disability it already had knowledge of or to request accommodations that the 

 

finding that sufficient evidence supports the jury’s verdict on Vetter’s claim regarding his 

termination alone provides a basis for a damage award. Regardless, we will address the 

sufficiency of the evidence supporting Vetter’s theory of liability based on the DNR’s 

failure to accommodate.
17

State had been providing. In spite of its knowledge of Vetter’s disability, the DNR

failed to include Vetter in the process of determining which accommodations 

would be necessary to allow him to perform his job duties. See Magnussen v. 

Casey’s Mktg. Co., 787 F. Supp. 2d 929, 956 (N.D. Iowa 2011) (noting the 

determination of whether an accommodation is possible “requires an interactive 

process”); see also Casey’s Gen. Stores, 661 N.W.2d at 521 (holding that the 

ICRA requires “an interactive process that engages the employee and employer 

to work in concert to achieve a reasonable accommodation”). Instead, it 

determined that the cost of accommodating Vetter’s disability was unduly 

burdensome and terminated him. Sufficient evidence supports Vetter’s claim of 

disability discrimination based on the failure to accommodate his disability.

III. Jury Instructions.

The State also challenges several of the trial court’s rulings relating to the 

jury instructions, arguing the trial court erred in failing to give one of the State’s 

requested instructions. It also challenges three of Vetter’s proposed instructions

that the court gave the jury.

A. Scope of review.

We review challenges to jury instructions for correction of errors at law. 

See Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). If a 

requested instruction correctly states the applicable law and is not embodied in 

the other instructions, the trial court is required to give it. See id. Likewise,

giving an instruction that materially misstates the law ordinarily requires reversal. 

See Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 902 (Iowa 2015). However, 

reversal is only warranted if the error is prejudicial. See Herbst v. State, 616 
18

N.W.2d 582, 585 (Iowa 2000) (citation omitted). The burden is on the party 

claiming harmlessness, and we assume prejudice has occurred unless the 

record firmly establishes the contrary. See Rivera, 865 N.W.2d at 903. 

In determining whether error was harmless, we “first guess” the jury by 

trying to divine what the jury would have done if it had been properly instructed. 

See id. Harmless error occurs “if the record affirmatively establishes that a party 

has not been injuriously affected by the alleged error or that there has not been a 

miscarriage of justice.” Id. If a party succeeds on two theories, any error in 

instructing on one theory is harmless if the jury was properly instructed on the 

other theory. See id. Finally, failure to give a requested instruction is harmless if 

the idea is contained in the instructions as a whole. See id.

B. Business judgment instruction.

The State first argues the trial court erred in refusing to give its requested 

instruction on business judgment. That instruction states:

An employer is free to terminate an employee’s employment 

for any nondiscriminatory reason even if its business judgment 

seems objectively unwise. Therefore, you may not return a verdict 

for Plaintiff just because you might disagree with [the DNR’s]

actions or believe them to be harsh or unreasonable.

You may, however, consider the believability of an 

explanation in determining whether it is a cover-up or pretext for 

discrimination. In order to succeed on his . . . disabilitydiscrimination claims, [Vetter] must persuade you, by a 

preponderance of the evidence, that were it not for . . . disability 

discrimination, his employment would not have been terminated.

In support of giving this instruction, the State notes the Iowa Supreme Court has 

held: “An employer is entitled to make his own policy and business judgments, 

and may, for example, fire an adequate employee if his reason is to hire one who 

will be even better, as long as this is not a pretext for discrimination.” Woodbury 
19

Cty. v. Iowa Civil Rights Comm’n, 335 N.W.2d 161, 166 (Iowa 1983) (quoting 

Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979)).

Assuming the business judgment instruction is a correct statement of the 

law, the trial court’s failure to give the instruction was harmless. The Woodbury 

County case, like the other cases cited by the State,7is a case involving indirect 

evidence of discrimination, analyzed under the McDonnell Douglas burdenshifting test. See id. As we have already stated, the only reason the DNR 

provided for Vetter’s termination related to his disability. Because this reason is 

direct evidence of discriminatory animus, there is no need to use the McDonnell 

Douglas burden-shifting test. See Vaughan, 542 N.W.2d at 539; Boelman, 522 

N.W.2d at 79. The State was not prejudiced by the court’s failure to give the 

requested instruction. See Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993)

(holding no prejudice resulted from error in comparative fault instructions when 

the jury did not find plaintiff at fault).

C. Unconscious bias instruction.

The State complains the trial court erred in giving the jury Vetter’s 

requested instruction on unconscious bias. That instruction states:

The law recognizes that unlawful discrimination sometimes 

happens without the decisionmaker having planned, thought out, or 

 

7

In addition to Woodbury County, the State cites Farmland Foods, Inc. v. Dubuque 

Human Rights Commission, 672 N.W.2d 733, 743 (Iowa 2003) (noting Farmland Foods’ 

failure to recall an African American employee was “at the very heart of the employer’s 

business judgment and expertise” because it encompassed Farmland Foods’ ability to 

allocate its resources), Cerro Gordo County Care Facility v. Iowa Civil Rights 

Commission, 401 N.W.2d 192, 197 (Iowa 1987) (“We may examine the employer’s 

motive to determine whether the employer was moved by discriminatory bias rather than 

business judgment.”), and Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 69 

(Iowa 2013) (noting an employer does not violate the ICRA by treating an employee 

unfairly so long as the employer does not engage in discrimination based on an 

employee’s protected status).
20

even acknowledged to himself or herself that it is taking place. The 

law acknowledges the effect of society’s stereotypes on employers 

in their decisionmaking, and that biased decisionmaking based 

upon those stereotypes can violate the law, even if the 

decisionmaker is unaware of bias in his or her thinking. This is 

because the law’s purpose is to eradicate discrimination in all 

forms, regardless of the personal character of the individuals 

making discriminatory decisions. 

If you find from all the surrounding circumstances that 

Defendants treated Plaintiff differently than it would have if he had 

not had a disability, even if the managers do not acknowledge or 

realize their own motives, you may find in favor of Plaintiff.

The State argues that the instruction misstates the law because it allowed the 

jury to find it engaged in disparate treatment of Vetter without the necessary 

proof of intent. 

We need not decide whether the instruction was a proper statement of law 

because the instruction was inapplicable to the facts of Vetter’s case. The 

instruction concerns an employer’s discriminatory animus in making adverse 

employment decisions when there is only indirect evidence to establish it. 

Because Vetter’s claims involve direct evidence that the DNR terminated Vetter 

based on his disability or failed to provide him a reasonable accommodation for 

his disability, the instruction should not have been given. See Bride v. Heckart, 

556 N.W.2d 449, 452 (Iowa 1996) (“The submission of instructions upon issues 

that have no support in the evidence is error.” (citation omitted)). 

Although it was error to give the requested instruction concerning 

unconscious bias, reversal is not required because the error was harmless. The 

jury instruction relates to those cases where a discriminatory animus is hidden. 

Because Vetter proved the adverse employment decisions made in his case

were directly related to his disability, the jury had no need to look further into the
21

DNR’s motives. Because the instruction did not affect any determination made 

by the jury, the error was harmless. 

D. Pretext instruction.

The State also challenges the trial court’s decision to give Vetter’s 

instruction regarding pretext. That instruction states:

The employer’s stated explanation for refusing to 

accommodate Plaintiff or for terminating him must be specifically 

articulated and non-discriminatory. The reasonableness of the 

employer’s explanation may be considered in determining whether 

it is a pretext, or a cover-up for disability discrimination.

Proof that the Defendants’ explanation is not true is one form 

of evidence that you may find proves discrimination. If you find that 

Defendants’ justification for refusing to provide Plaintiff with an 

accommodation or for terminating him is not true, discrimination 

may be the most likely alternative explanation. This may be 

especially so, since Defendants are in the best position to put forth 

the actual reasons for their decision.

You may find that Plaintiff’s disability was a motivating factor 

in the Defendants’ refusal to accommodate him or their decision to 

terminate him if it has been proven that the Defendants’ stated 

reason for their decision is not the real reason, but it is pretext to 

hide discrimination.

You may find that disability discrimination occurred, if you 

find that the reasons offered by the Defendants for refusing to 

provide accommodations or terminating Plaintiff are false.

The State argues this jury instruction misstates Vetter’s burden of proof because 

it allowed the jury to find the DNR engaged in discrimination if it disbelieved the 

DNR’s reason for terminating Vetter without clearly requiring the jury to also 

believe it intentionally discriminated against him.

Again, Vetter’s claims did not require a burden-shifting analysis, and 

Vetter was not required to show the DNR’s offered reason for terminating him or 

failing to accommodate his disability was pretext for discrimination. Both his 

claims involved direct evidence that the adverse employment actions alleged—
22

termination and failing to accommodate his disability—were based on his 

disability. Therefore, the instruction on pretext was not warranted. 

We again conclude there was no prejudice to the State in instructing the 

jury on pretext because Vetter’s success did not require him to discredit any 

nondiscriminatory reasons for the DNR’s actions. The DNR based its adverse 

employment decisions on Vetter’s disability. Therefore, the pretext instruction 

had no bearing on the outcome of trial.

E. Reasonable accommodation instruction.

Finally, the State argues the court erred in instructing the jury on the law 

relating to reasonable accommodations. The State complains that the court 

instructed the jury that Vetter had to prove that either he “requested 

accommodation for his disability or [the DNR] knew or should have known that 

[Vetter] needed accommodation for his disability.” (Emphasis added.) The State

also complains about another jury instruction, which states in part:

When an employer becomes aware that an employee is 

disabled and may need an accommodation, the law requires the 

employer to initiate an informal, interactive process to determine 

appropriate reasonable accommodations. All that is required to 

trigger an employer’s duty to engage in the interactive process is 

knowledge (including circumstantial) that the employer may have a 

condition that may qualify as a disability and result in some 

limitation that could require an accommodation.

The State argues that to succeed on his failure-to-accommodate claim, Vetter 

had the burden of showing he requested a reasonable accommodation. It claims 

the jury instructions erroneously lowered Vetter’s burden of proving he requested 

an accommodation.
23

As stated in our analysis regarding the sufficiency of the evidence to 

support Vetter’s failure-to-accommodate claim, an employee is not required to 

personally request an accommodation when the employee’s disability and need 

for an accommodation are obvious. See Walsted, 113 F. Supp. at 1335. 

Because the instruction correctly states the law, we affirm. 

IV. Damage Award.

In its final assignment of error, the State argues the trial court erred in 

denying its motion for new trial based on its claim the jury awarded excessive 

damages. Specifically, the State claims the jury’s award of $435,000 for 

emotional distress damages is unsupported by the record and that passion or 

prejudice influenced the award. 

A. Scope of review.

We review a motion for new trial based on discretionary grounds for an 

abuse of discretion. See Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 

2009). In order to receive a new trial, the State must affirmatively establish its 

claim that the verdict was motivated by passion or prejudice. See id. A verdict 

that is clearly excessive is presumed to have been a product of passion or 

prejudice. See id. If it is not clearly excessive, passion or prejudice must be 

found in the record evidence. See id.

B. Award of emotional distress damages.

An award of damages for emotional distress is available under the ICRA. 

See Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm’n, 453 N.W.2d 512, 

525 (Iowa 1990). Such damages are recoverable under the ICRA even if there is 

no showing of physical injury, severe distress, or outrageous conduct. See id. 
24

The amount of damages to award is primarily a jury question, and we will not 

interfere if the award is within a reasonable range of the evidence. See Jasper,

764 N.W.2d at 772. 

Generally, damages for emotional distress are highly subjective and not 

easily calculated in economic terms. See id. In determining whether a damage 

award for emotional distress is excessive, it is helpful to consider the range of 

such damages awarded in similar cases. See id. However, our supreme court 

has acknowledged that

the upper range of emotional-distress damages increases as the 

nature of the wrongful conduct involved becomes more egregious, 

and the emotional distress suffered becomes more severe and 

persistent. Even the length of the employment, compatibility of the 

worker in the employment, age and employment skills of the 

worker, and the span of time necessary to become reemployed 

impact the amount of emotional-distress damages.

Id. at 773.

In denying the State’s motion for new trial based on an excessive award of 

damages for emotional distress, the trial court held:

The court agrees with plaintiff that the jury’s damage award 

for emotional distress, while certainly at the upper end of the range 

of reasonable awards for such injuries, was nevertheless supported 

by substantial evidence in the record and was not excessive. As 

further support for its conclusion that the jury’s award was not 

excessive, the court cites defendants’ remarkable and totally 

unexpected change of position at trial and in the middle of 

presentation of their case in chief, specifically, from one of 

complete denial of liability to one of admitting that they made 

mistakes and essentially saying that, if they had it all to do over 

again, plaintiff would still be employed by defendants, and then 

apologizing to plaintiff for same.[8] In the court’s view, defendants 

 

8 After sincerely regretting the paper-based decision to fire Vetter, Vetter’s immediate 

supervisor said at trial: “And John, I’m very sorry. I made mistakes. I am very sorry. 

And I know you’ll probably never forgive me, but I am sorry on that. . . . Looking 

backwards, I would have done things differently. . . . If I had a time machine today, I’d 
25

more or less invited a damage award of the magnitude of the one 

actually returned.

The State argues the trial court’s finding that it “invited” the high damage award is 

evidence that the award is punitive in nature. The State implies that Vetter’s lack 

of medical treatment for his emotional distress is further indication that the jury’s 

award was excessive. 

The evidence shows that Vetter, who was sixty-four years old at the time 

of trial, had worked full-time for the DNR for more than thirty-six years before his 

termination. Vetter testified that he loved his job, stating:

Well, I love growing the trees and the satisfaction of treating 

the seed and seeing them grow out in the field and knowing you 

had accomplished growing, you had a good crop for the year, and 

then the maintenance of equipment.

I took a lot of pride in the painting of all the tractors and the 

equipment and building new things to make our job easier and 

better.

On the day he was terminated, Vetter’s supervisor confiscated Vetter’s keys, took 

Vetter’s work identification, and escorted Vetter to his car. Vetter told the jury 

this made him feel “[l]ike I was a criminal who had done something wrong.” As 

he walked to his car, Vetter who was “[s]till in shock and not understanding what

was going on,” asked the supervisor if the DNR had considered the impact his 

firing would have on the nursery; the supervisor replied, “Nobody cares.” 

Although Vetter “held on to the silly hope that [he] was really needed” at the 

 

go back and fix things.” This is reminiscent of the response Frank Shirley (played by 

Brian Doyle-Murray) gave after Clark Griswold (played by Chevy Chase) chastised

Shirley for cancelling his employees’ Christmas bonuses: “Sometimes things look good 

on paper, but lose their luster when you see how it affects real folks.” National 

Lampoon’s Christmas Vacation (Warner Bros. 1989). 
26

nursery, he was never reinstated. Vetter further explained to the jury how his 

termination affected him:

Seemed like I had worn out my usefulness, self-esteem took 

a hit, felt like I . . . just couldn’t do my job.

Q. Have you questioned your worth since you were fired? A. 

Yes, I did. Yes, I have.

Q. Can you tell us about that? A. Struggled with feeling 

whether I knew what I was really doing and just, you know, working 

on the cars and my hobby and things like that. I questioned my 

abilities.

Q. Were you an insecure person before your termination? 

A. Not at all.

Q. Did you feel like the State, DNR, the defendants in this 

case, have labeled you incapable? A. Yes. That’s exactly what I 

felt.

Q. What effect does that have on you? . . . Currently how 

has it felt over the two years since you’ve been fired? A. It’s taken 

me quite a while to get back into my hobby. And, actually, I’m 

starting back into it now, and I’m participating in it more.

Q. Why did it take you a while to get back into it? A. Several 

reasons. Because everybody knew me in the community and I’d 

been fired, I had a hard time facing people. I just was 

embarrassed, kind of felt humiliated. I really struggled with facing 

these same people that I had for [thirty-six] years.

Q. How long do you think you could have continued to do 

your job at the state forest nursery at a high level? A. The high 

level that I was doing, I felt that I could have continued all the way 

until I wanted to retire. I did not see any issues.

Q. How often do you think about the circumstances 

surrounding your termination? A. I’d say almost daily.

Q. And when you have those thoughts, how do you feel? A. 

I’m hurt. I’m very hurt, and I will add in anger. I’m very upset with 

the State for treating me that way.

Q. What has been the very worst moment of this whole 

ordeal for you? A. Other than May 17, having to relive this all over 

again.

Q. The jury might be wondering if you’re here because 

you’re bitter. Why have you pursued this lawsuit? A. Truthfully, 

I’ve pursued this because I feel that what the State did to me was 

wrong.

You shouldn’t be allowed to treat people that have given 

blood, sweat, and tears to their career for [thirty-six] years and then 

just kick them out the door. I don’t feel that’s right nor should it be 

allowed.
27

Q. John, will you look at Exhibit 10, page 9? It’s the last 

page. This was the document Aron Flickinger created regarding 

work duties at the nursery.

Mr. Flickinger writes, “Our customers are not cold statistics. 

They are human beings with feelings, moods, and emotions like our 

own.”

When you read that and think about it, what does that make 

you think? A. Neither are the people that work there. They’re 

human beings with feelings, moods, and emotions. We’re not just 

another statistic.

Q. Do you feel like in this case you were treated like a cold 

statistic? A. Yes, on a piece of paper. That was it. Just words on 

a piece of paper led to my being fired.

Q. How did that make you feel after [thirty-six] years of 

service to be treated like a cold statistic? A. Cheated, because I 

don’t feel I was given a fair shake. I don’t feel that the State acted 

honestly in how they treated me.

Vetter’s son, Aaron, also testified extensively about the effect that Vetter’s 

termination had on his emotional state. Aaron told the jury that Vetter loved 

working for the DNR, loved the work he did, and was passionate about his job. 

When Vetter called Aaron and told him he had been terminated, Vetter was in 

shock and Aaron initially “thought by the way that he was acting that somebody 

might have passed.” Aaron testified that Vetter “just couldn’t believe it. And 

what’s worse is that he didn’t understand it.” When Aaron saw Vetter later in the 

week, “he walked around sort of like a ghost for a bit there and really just unsure 

and sick.” Vetter withdrew from his family. Aaron testified that he believes the 

way Vetter’s career with the DNR ended has tainted the thirty-six years Vetter 

worked for the DNR. Aaron observed Vetter’s emotional pain manifest 

physically, testifying, “I’ve seen him cry. I’ve heard him choke up over the phone 

when this first happened. I’ve seen him lose weight. . . . I know that he had 

struggled with his appetite for the longest time. Those are the things that I 

noticed.” Vetter’s termination also affected his ability to sleep, and Aaron opined 
28

that being terminated was one of the most difficult things Vetter, a veteran of the 

Vietnam War, had been through. Aaron characterized Vetter’s termination after 

three decades of working for the State as “a slap in the face.” 

Vetter’s wife, Carol, also testified about the toll Vetter’s termination took on 

him. Carol explained that Vetter took a lot of pride in the work he did for the DNR

and that his job was “his life. He was so proud of the tree nursery. That was his 

baby.” Vetter even took Carol to the nursery after hours on their second date to 

show her around. When Vetter told Carol he had been fired, she could tell by 

“[h]is voice, the way he tried to compose himself to talk,” that Vetter was “in total 

shock and disbelief, very, very upset.” She observed that it took Vetter “some 

time” for the reality of the situation to sink in, and that the following months were 

difficult for him because he “gave his whole heart to his job and [was] just told to 

leave.” Vetter ran through the termination scenario in his mind many times a day 

for approximately six months, and it still played through his mind at the time of 

trial. She believed the hurt and pain will continue for the rest of his life. 

Considering the length of Vetter’s employment with the DNR, his age and 

employability, his passion for his job, and the toll his termination has taken on his 

emotional and physical health, a larger award of emotional distress damages is 

warranted. We disagree with the State’s characterization of the damage award 

as excessive. The State failed to show the award was influenced by passion or 

prejudice. On this basis, the trial court was within its discretion to deny the 

State’s motion for new trial based on the damage award, and we affirm.
29

V. Litigation Expenses.

On cross-appeal, Vetter challenges the trial court’s denial of his request to 

be awarded litigation expenses. We review this claim for an abuse of discretion. 

See Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990).

The trial court ordered Vetter be reimbursed for the cost of filing the 

petition and serving it on the defendants, the standard witness fee and additional 

compensation for his expert witness’s testimony at trial, and the fee paid to an 

expert witness for his discovery deposition. However, it denied Vetter’s request 

that he be reimbursed for the costs of scanning, copying, printing, electronic 

research, long-distance phone charges, mileage, postage, meals, and parking. 

Vetter argues the trial court abused its discretion in denying recovery of these 

expenses because it mistakenly believed it did not have the authority to award 

him these expenses. 

In denying these expenses, the trial court held that “only expenses for 

which reimbursement is available are those for which reimbursement is 

specifically authorized by statute or rule.” However, the ICRA provides that a 

plaintiff who brings a successful claim under the ICRA may recover damages, 

which “shall include but are not limited to actual damages, court costs and 

reasonable attorney fees.” Iowa Code § 216.15(9)(a)(8) (emphasis added). The 

ICRA’s federal counterparts have been interpreted to allow recovery of 

“reasonable out-of-pocket expenses incurred by the attorney which are normally 

charged to a fee paying client” as attorney fees. Sturgill v. UPS, Inc., 512 F.3d 

1024, 1036 (8th Cir. 2008) (citation omitted) (concluding this rule is consistent 

with United States Supreme Court precedent). 
30

A court abuses its discretion when it fails to exercise any discretion. See 

MC Holdings, L.L.C. v. Davis Cty. Bd. of Rev., 830 N.W.2d 325, 331 (Iowa 2013). 

Because the trial court had the ability to award the litigation expenses Vetter 

requested and erroneously believed it was unable to award these expenses, it 

failed to exercise its discretion. Therefore, the trial court abused its discretion in 

denying Vetter’s request for an award of expenses for scanning, copying, 

printing, electronic research, long-distance phone charges, mileage, postage, 

meals, and parking. Accordingly, we reverse the denial of these litigation 

expenses and remand to the district court to determine whether to award these 

expenses as part of Vetter’s attorney fees. On remand, the court should also 

consider the amount of attorney fees, costs, and expenses necessitated by this 

appeal. See Landals, 454 N.W.2d at 898-99 (holding that to the extent a plaintiff

in an age discrimination case brought under the ICRA “was entitled to an award 

of attorney fees for his litigation expense before the district court, he is likewise 

entitled to an award of fees necessitated by this appeal” and “remand[ing] to the 

district court for hearing on [plaintiff]’s motion for appellate attorney fees and 

costs”).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Tabor, J., concurs; McDonald, J., dissents.
31

MCDONALD, Judge. (dissenting)

The defendants incompetently managed Vetter’s work restrictions and

callously terminated Vetter’s employment. The jury was angry. It punished the 

defendants. I am tempted to concur in the majority opinion on the ground the 

defendants received their just deserts, karmic justice was achieved. Except 

karmic justice is not a legal reason. Legal reasons compel me to respectfully 

dissent. 

I.

To establish his claim under the Iowa Civil Rights Act Vetter was required 

to establish as a threshold matter he had a “disability” within the meaning of the 

act. See Schlitzer v. Univ. of Iowa Hosp. & Clinics, 641 N.W.2d 525, 530 (Iowa 

2002) (setting forth prima facie case); see also Christian v. St. Anthony Med. Ctr., 

Inc., 117 F.3d 1051, 1053 (7th Cir. 1997) (“The [ADA] is not a general protection 

of medically afflicted persons. . . . If the employer discriminates against them on 

account of their being (or being believed by him to be) ill, even permanently ill, 

but not disabled, there is no violation.”); Bray v. Nat’l Servs. Indus., Inc., 209 F.

Supp. 2d 1343, 1350 (M.D. Ga. 2001) (“To complete such an analysis, however, 

it is necessary first to determine whether an impairment, either actual or 

perceived, would constitute a disability under the ADA.”). 

The ICRA defines “disability” as “the physical or mental condition of a 

person which constitutes a substantial disability.” Iowa Code § 216.2(5) (2013). 

This required Vetter to prove he had “a physical or mental impairment which 

substantially limits one or more major life activities, has a record of such an 

impairment, or is regarded as having such an impairment.” Iowa Admin. Code r. 
32

161-8.26(1); 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 term “physical or mental impairment” 

means

a. 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; genito-urinary; hemic and lymphatic; skin; and endocrine; 

or

b. Any mental or psychological disorder, such as mental 

retardation, organic brain syndrome, emotional or mental illness, 

and specific learning disabilities.

Iowa Admin. Code r. 161-8.26(2). The “term ‘major life activities' means 

functions such as caring for one's self, performing manual tasks, walking, seeing, 

hearing, speaking, breathing, learning, and working.” Id. r. 161-8.26(3). The 

impairment and corresponding limitation or limitations must be more than 

transitory. See Vincent v. Four M Paper Corp., 589 N.W.2d 55, 62 (Iowa 1999). 

Even when the evidence is viewed in the light most favorable to the jury’s 

verdict, there is not substantial evidence Vetter was actually disabled. Vetter 

suffered no long-term impairment or substantial limitation of a major life activity. 

See Bray, 209 F. Supp. 2d at 1351 (“It is well-recognized that temporary injuries 

or impairments are not generally recognized as constituting substantially limiting 

conditions for purposes of showing a disability.”). Vetter suffered an acute workrelated back injury in 2011. His physical capabilities were limited following the 

injury. Vetter then underwent surgery and post-surgical rehabilitation. Vetter 

testified he “was very pleased” with his surgery and rehabilitation. Vetter 

returned to work in February 2012 without restrictions. Vetter admitted he 
33

returned to work and performed all of the functions of his physically demanding 

job. Vetter’s counsel asked him if he was “ever unable” to “to work outdoors and 

withstand physically demanding work such as stooping, bending, and routinely 

lifting up to [fifty] pounds.” Vetter answered “No, not at all.” It was only in 

January 2013—after Vetter had been working without restrictions for almost one 

year—that Vetter was issued work restrictions. The work restrictions were issued 

after a functional capacity evaluation performed for workers’ compensation 

purposes, but the restrictions did not bear any relationship to Vetter’s actual 

physical condition. Vetter testified he did not pay attention to the restrictions 

because they were not of “any value.” He testified he “had been able to do [his] 

job for the last year” and did not need any restrictions. 

Vetter’s counsel recognized this glaring legal problem in Vetter’s claim. 

During closing argument, Vetter’s counsel argued the jury could find Vetter was 

disabled if he was impaired and substantially limited in 2011, even if the 

impairment and substantial limitation had been resolved by 2013:

But the reason we focus on 2011 . . . . is . . . the fact that you need 

to think about the condition without the helpful effects of mitigating 

measures such as—and we know he had surgery, we know he had 

physical therapy, we know he had injections. So 2011 was when it 

was at its worst. And you also have to consider that in determining 

whether or not he’s disabled.

Vetter contends this was proper because, in determining whether the 

plaintiff was disabled, the jury should not have considered mitigating measures, 

like surgery, that improved Vetter’s physical condition. Vetter’s argument is 

unavailing. As above noted, it is well established a temporary impairment is not 

a disability within the meaning of the act. In addition, Vetter fails to distinguish 
34

between mitigating measures that ameliorate any limitation or limitations caused 

by a physical impairment (e.g., corrective lenses, hearing aids, and, in some 

circumstances, surgery) and mitigating measures that resolve the impairment. 

The law is well established that an employee who suffers an acute impairment, 

who undergoes surgery or treatment to resolve the resulting impairment, and 

who is able to recover without significant restriction is not “disabled” within the 

meaning of the act. See, e.g., Troeger v. Ellenville Cent. Sch. Dist., 523 F. App’x 

848, 852 (2d Cir. 2013) (holding plaintiff was not disabled where he suffered an 

injury, had surgery, and recovered such that he had no significant restrictions 

other than a lifting restriction of twenty pounds); Heintzelman v. Runyon, 120 

F.3d 143, 145 (8th Cir. 1997) (stating an “asserted inability to work while 

recovering from surgery is simply not evidence of a permanent impairment”); 

McDonald v. Pennsylvania, Dep’t of Pub. Welfare, 62 F.3d 92, 96–97 (3d Cir. 

1995) (holding that recuperation after abdominal surgery is not a disability); 

Evans v. City of Dallas, 861 F.2d 846, 852–53 (5th Cir. 1988) (holding knee injury 

that required surgery where there was recovery did not result in a disability); 

Huskins v. Pepsi Cola, 180 F.Supp. 2d 347, 351–52 (N.D.N.Y.2001) (holding an 

employee who had a shoulder injury that prevented him from performing his job 

duties for five months was not disabled under the ADA); Hutchinson v. United 

Parcel Serv., Inc., 883 F. Supp. 379, 396 (N.D. Iowa 1995) (holding employee 

was not disabled where employee suffered non-minor injuries but “the medical 

record demonstrates that they were temporary, and that any permanent 

impairment is only slight”); Maloney v. Barberton Citizens Hosp., 672 N.E.2d 223, 

225 (Ohio Ct. App. 1996) (interpreting Ohio law and concluding plaintiff was not 
35

“handicapped” within the meaning of discrimination law where “plaintiff’s back 

injury was a transitory injury, which caused her pain and inconvenience for a 

definite period of time, but which had no adverse residual effects”); Bennett v. 

Nissan N. Am., Inc., 315 S.W.3d 832, 845 (Tenn. Ct. App. 2009) (holding 

employee who underwent neck-fusion surgery to address neck and arm pain was 

not disabled within meaning of Tennessee act where employee fully recovered, 

was able to return to work, and was physically active at home). Stated another 

way, Vetter had no physical impairment during the relevant time period and thus, 

as a matter of law, was not disabled.

Even assuming the surgery and rehabilitation did not fully resolve Vetter’s 

physical impairment, the physical impairment did not “substantially limit” Vetter in 

one or more major life activities. During closing argument, Vetter’s counsel told 

the jury “when those physical restrictions were given . . . he’s disabled as a 

matter of law.” That is incorrect. The argument fails to distinguish between a 

physical impairment, a work restriction, and a disability. See Pryor v. Trane Co., 

138 F.3d 1024, 1028 (5th Cir. 1998) (“[T]he mere fact that Pryor had work 

restrictions did not require the jury to find that she had a disability that 

substantially limited a major life activity.”); Palmieri v. City of Hartford, 947 F.

Supp. 2d 187, 199 (D. Conn. 2013) (“However, the terms ‘impairment’ and 

‘disability’ are not equivalent; for an individual to be disabled he must show that 

the impairment substantially limits a major life activity . . . .“); Jones v. Walgreen 

Co., 765 F. Supp. 2d 100, 109–10 (D. Mass. 2011) (“Particularly important here 

is the distinction that Plaintiff has failed to draw between her disability and her 

restrictions. Plaintiff contends that she was wrongfully terminated because of her 
36

disability. Defendant Walgreen freely admits that she was terminated because of 

her restrictions. Plaintiff has conflated her disability and her restrictions, 

overlooking the fact that an employer may base a decision that the employee 

cannot perform an essential function on an employee's actual limitations, even 

when those limitations result from a disability.” (emphasis in original) (internal 

quotation omitted)). While work restrictions might evidence a limitation caused 

by a physical impairment, it is not the case that work restrictions establish a 

disability as a matter of law. 

The work restrictions in this case do not establish Vetter was substantially 

limited in a major life activity. First, the restrictions did not correspond to Vetter’s 

actual physical condition. Because Vetter filed a workers’ compensation claim, 

the workers’ compensation claim administrator had Vetter undergo a functional 

capacity evaluation in September 2012. Vetter testified he did not understand 

the purpose of the evaluation because he was better by the time of the 

evaluation. Vetter testified he did not pay attention to the evaluation or the 

subsequent restrictions because they were not of “any value.” He testified he 

had been able to do the job for the last year. In fact, when the consultant came 

and asked whether Vetter actually needed accommodations in performing his 

job, Vetter said, “I told him that there was nothing that I could think of I needed; I 

was fine and was able to do my job.” Second, and more important, the 

restrictions imposed in this case have been found, as a matter of law, to not 

constitute a substantial limitation on one or more major life activities. See 

Hansen v. Seabee Corp., 688 N.W.2d 234, 242 (Iowa 2004) (holding lifting 

restriction was not a substantial limitation of a major life activity); See, e.g.,
37

Gretillat v. Care Initiatives, 481 F.3d 649, 654 (8th Cir. 2007) (holding impairment 

that limited crawling, kneeling, crouching and squatting was not a disability);

Lorenzen v. GKN Armstrong Wheels, Inc., 345 F. Supp. 2d 977, 990 (N.D. Iowa 

2004) (lifting restriction and minor impairments, even when considered 

cumulatively, do not constitute a substantial limitation on a major life activity);

Miller v. Airborne Express, No. 3:98-CV-0217-R, 1999 WL 47242, at *4 (N.D. 

Tex. Jan. 22, 1999) (stating squatting does not constitute a major life activity). In 

addition, Vetter did not produce evidence his purported limitations actually 

“prevent[ed] or severely restrict[ed] [him] from doing the set of activities that are 

‘of central importance to most people’s daily lives.’” Nuzum v. Ozark Auto.

Distrib., Inc., 432 F.3d 839, 846 (8th Cir. 2005) (quoting Toyota Motor Mfg. v. 

Williams, 534 U.S. 184,198 (2002)).

We must always evaluate impairments on an individual basis, which 

requires an assessment of the actual impairment, the actual limitations caused 

by the impairment, and whether the purported limitations severely restrict the 

plaintiff in the activities of daily living. See Moore v. J.B. Hunt Transp., Inc., 221 

F.3d 944, 952 (7th Cir. 2000). Conclusory statements regarding the plaintiff’s 

condition that merely mimic the relevant legal standard are insufficient to 

establish a disability. See Doren v. Battle Creek Health Sys., 187 F.3d 595, 598–

99 (6th Cir.1999), Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 

1985) (“Conclusory allegations without specific supporting facts have no 

probative value.”). Instead, the disability determination must be “based on the 

effect of the impairment in [the plaintiff’s] life.” Hinojasa v. Jostens Inc., 128 F. 

App’x 364, 367 (5th Cir. 2005).
38

There is nothing in this record to suggest that Vetter had an actual 

impairment in 2013, that the impairment actually limited him in any significant 

way, or that the purported limitation impacted any activity of central importance in 

his daily life. Ryan Schlatter worked as a fire prevention specialist at the nursery 

since 1999. He was friends with Vetter and saw Vetter at work almost every day. 

He testified Vetter “looked like he was doing everything he had done before the 

back injury.” He also testified the “back injury did not really affect his ability to do 

his job.” Schlatter also testified the back injury did not limit Vetter outside work. 

Vetter rebuilt and restored antique cars and hot rods. According to Schlatter, this 

was physical work. Vetter did this before and after the back surgery.

Kevin Barker worked with Vetter on a daily basis for eighteen years. He 

testified Vetter could do all of the physical work the job required. He testified 

Vetter could walk without limitation. He testified Vetter had no issue standing on 

his feet for a long period of time. He testified Vetter was able to get down 

underneath vehicles and do work. Plaintiff’s counsel asked Barker, “In the last 

[eighteen] years you worked by this man, had anything changed in that last year 

that you somehow thought he couldn’t do the job?” Barker answered, “No. He 

could do the job.” Beyond the job, Barker testified there was not “anything that 

[Vetter] did not do or could not do after his injury that he did before.” 

Similarly, Aaron Wright saw Vetter on a daily basis and testified there was 

no physical job duties Vetter was unable to perform. He testified Vetter 

maintained the equipment and machines. He testified Vetter lifted and helped 

others lift things. Vetter operated a forklift. “He was able to complete all his job 

duties in the year before he left the Department of Natural Resources.” 
39

Vetter confirmed his coworkers’ assessment regarding the lack of any

permanent impairment and the lack of any actual limitation. He did not need help 

lifting. In fact, he testified he actually “help[ed] people lift things even after [his] 

injury.” He was able to climb. When asked whether, “it was difficult for you to 

climb into a tractor,” Vetter replied, “No, not at all.” He was also asked, “Do you 

think you grimaced when climbing into a tractor,” and he answered, “No.” He 

testified he was able to drive vehicles over bumpy terrain. He testified he could 

climb ladders. He testified his injury did not prevent him from collecting seeds, 

walking, reaching, and bending. He was able to get on the ground or sit without 

assistance. He was able to get under equipment to work on it. He did it “all the 

time.” He testified he was able to twist and rotate. 

The fact Vetter had no permanent impairment and no permanent limitation 

was evidenced by the very physical work he performed. After recovering from 

surgery, Vetter performed manual tasks at work. He continued to repair heavy 

machinery. He put a clutch into a tractor. He rebuilt a seeder. He repaired a 

lawnmower, which required pulling off the deck and replacing the bearing and 

blades. He rebuilt motors, transmissions, and other hydraulic equipment. He 

continued to fabricate heavy equipment and tools for the nursery. He built a 

protective cage for a battery charger, which required him to cut steel and weld it 

together. He testified he maintained the “nursery grounds, fence, windbreaks, 

and parking lots.” He trimmed windbreaks back where there were overhanging 

branches. Vetter testified this was physical work. He “ran the chainsaw and 

drove the tractor and loaded the branches.” He “stocked cleaning supplies and 

organized the cleaning room.” After his injury, he removed and regraded a field. 
40

Vetter “[ran] the bulldozer and [took] out the trees and cut them off and hauled 

them off to the dump or drug them down to the brush pile for disposal.” After 

doing that he “went in with a tiller and did seed bed prep.” 

There is also no evidence Vetter was limited outside the workplace. 

Vetter testified he is not a couch potato. He still works on his antique cars, and 

he helps others do the same. He is an avid boater. He also has ridden 

RAGBRAI in the past and testified he was training to ride it again. RAGBRAI is a 

week-long bicycle ride across the state of Iowa. Vetter did not introduce any 

evidence of a limitation of any major life activity outside the workplace. 

This is not simply a case in which Vetter could perform the essential 

functions of the job despite his disability. Here, the essential functions of the job 

were physical in nature. The fact that Vetter was able to perform them shows not 

only that he could perform the essential functions of the job but also that he had 

no impairment and that he was not physically limited in any way, let alone 

substantially limited. 

I understand why the jury reached the verdict it did. The jury was mad at 

the defendant’s treatment of a long-time, loyal employee. Rightfully so. 

However, the Iowa Civil Rights Act does not create a cause of action for 

employees wronged by inept managers. The purpose of the act is to prevent 

employment discrimination against the “disabled.” There is not substantial 

evidence Vetter was disabled within the meaning of the act. I would vacate the 

judgment entered in favor of the plaintiff and remand this matter for dismissal.
41

II.

Even assuming there was substantial evidence in support of the jury’s 

verdict, I would still vacate the judgment and remand this matter for new trial due 

to prejudicial instructional error. Claims of instructional error are reviewed for the 

correction of errors at law. See Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 707 

(Iowa 2016). 

The defendants first challenge the pretext instruction the court gave to the 

jury. With respect to claimed error in an instruction given, error will not warrant 

reversal unless the objecting party has been prejudiced. See Kurth v. Iowa Dep’t 

of Transp., 628 N.W.2d 1, 5 (Iowa 2001). Prejudicial error occurs when an 

instruction materially misstates the law, confuses or misleads the jury, or is 

unduly emphasized. See Anderson v. Webster City Cmty. Sch. Dist., 620 

N.W.2d 263, 268 (Iowa 2000). Instructions that comment on the evidence or the 

weight to be given to the evidence are improper and prejudicial. See Peters by 

Peters v. Vander Kooi, 494 N.W.2d 708, 712–13 (Iowa 1993).

In this case, the district court gave the jury a modified pretext instruction. 

As a general rule, trial courts have the discretion to modify or rephrase approved 

or uniform instructions “to meet the precise demands of each case as long as the 

instructions fully and fairly embody the issues and applicable law.” Sumpter v. 

City of Moulton, 519 N.W.2d 427, 434 (Iowa Ct. App. 1994) (citing Norton v. 

Adair Cty., 441 N.W.2d 347, 358 (Iowa 1989)). In Deboom v. Raining Rose, the 

supreme court held the following pretext instruction was a correct statement of 

the law:
42

You may find that plaintiff’s sex was a motivating factor in 

defendant’s decision to terminate if it has been proved by the 

preponderance of the evidence that defendant's stated reasons for 

its decision are not the real reason, but are a pretext to hide sex 

discrimination.

772 N.W.2d 1, 9 (Iowa 2009). The district court modified this instruction to also 

add, “If you find that Defendants’ justification for refusing to provide Plaintiff with 

an accommodation or for terminating him is not true, discrimination may be the 

most likely alternative explanation.” (emphasis added.) The instruction went on, 

stating, “This may be especially so, since Defendants are in the best position to 

put forth the actual reasons for their decision.” 

The district court’s additional instructions were an improper comment on 

the evidence. Here, the district court correctly instructed the jury it could infer 

discriminatory intent if it found the defendants’ stated reasons for terminating 

Vetter’s employment were false. However, the instruction went further and told 

the jury discrimination may be “the most likely” inference to be drawn from the 

evidence and further explained why discriminatory intent may be “the most likely” 

inference to be drawn. In short, the district court’s modified instruction, rather 

than informing the jury it may draw an inference of discrimination from certain 

evidence, instructed the jury it should draw an inference of discrimination 

because it was “the most likely” explanation of the defendants’ conduct. 

The defendants also contend the district court erred in refusing to give the 

defendants’ requested instruction on the business judgment rule. The requested 

instruction provided:

An employer is free to terminate an employee’s employment for any 

nondiscriminatory reason even if its business judgment seems 

objectively unwise. Therefore, you may not return a verdict for 
43

Plaintiff just because you might disagree with Defendants’ actions 

or believe them to be harsh or unreasonable.

It is reversible error to decline to give an instruction where it correctly states the 

law, has application to the case, and is not stated elsewhere in the instructions. 

See Deboom, 772 N.W2.d at 5. I conclude the district court erred in refusing to 

give the requested instruction. 

Federal courts have adopted the instruction for use in employment 

discrimination cases. See Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 

1979) (stating “[t]he court should also . . . explain that an employer is entitled to 

make its own subjective business judgments, however misguided they appear to 

the jury, and to fire an employee for any reason that is not discriminatory”). The 

First, Third, Eighth, and Eleventh Circuits have model instructions for the 

business judgment rule to be used in employment discrimination cases, including 

disability cases. The Federal Jury Practice and Instructions includes a model 

instruction, stating “In determining whether defendant’s stated reason for its 

actions was a pretext for discrimination, you may not question defendant’s 

business judgment. Pretext is not established just because you disagree with the 

business judgment of defendant [name], unless you find that defendant’s reason 

was a pretext for discrimination.” 3C Fed. Jury Prac. & Instr. § 171:75 (6th ed.). 

While our supreme court has not explicitly approved an instruction for the 

business judgment rule to be used in cases arising under the Iowa Civil Rights 

Act, it has affirmed the employer is entitled to exercise business judgment in 

addressing personnel matters. See Farmland Foods Inc. v. Dubuque Human 

Rights Comm’n, 672 N.W.2d 733, 743 (Iowa 2003) (noting the employer’s right to 
44

exercise “business judgment and expertise”); Woodbury County v. Iowa Civil 

Rights Comm’n, 335 N.W.2d 161, 167 (Iowa 1983) (“An employer is entitled to 

make his own policy and business judgments, and may, for example, fire an 

adequate employee if his reason is to hire one who will be even better, as long 

as this is not a pretext for discrimination.” (quoting Loeb, 600 F.2d at 1012 n.6)). 

This leads me to conclude the business judgment rule is a correct statement of 

the law in Iowa. This also leads me to conclude the district court should have 

given the instruction and erred in declining to do so. See, e.g., Walker v. AT & T 

Tech., 995 F.2d 846, 849–50 (8th Cir. 1993) (“AT & T’s proposed instruction 

states the substantive law that an employer has the right to make business 

decisions—to assign work, to change an employee's duties, to refuse to assign a 

particular job, and to discharge—for good reason, bad reason, or no reason at 

all, absent intentional age discrimination. The court did not instruct the jury that

an employer had a right to make such business decisions. . . . the district court 

erred.”).

III.

For the foregoing reasons, I respectfully dissent.