Matthew Lewis Hunter v. City of Des Moines, Iowa
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Opinion
IN THE COURT OF APPEALS OF IOWA
No. 24-0735 Filed October 1, 2025
MATTHEW LEWIS HUNTER, Plaintiff-Appellee,
vs.
CITY OF DES MOINES, IOWA, Defendant-Appellant, ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
An employer appeals the denial of its motions for new trial and judgment
notwithstanding the verdict after trial on a former employee’s disability
discrimination claims. REVERSED AND REMANDED.
Michelle Mackel-Wiederanders (argued) and Luke DeSmet, Assistant City
Attorneys, Des Moines, for appellant.
David Albrecht (argued) of Fiedler Law Firm, P.L.C., Johnston, and Kellie
L. Paschke and Kelly Verwers Meyers of Skinner & Paschke, P.L.L.C., West Des
Moines, for appellee.
Heard at oral argument by Tabor, C.J., and Greer, Ahlers, Badding, and
Sandy, JJ. 2
BADDING, Judge.
Nobody’s career should be defined by its lowest points. But here, we must
dwell on two of the worst days in Matthew Hunter’s twenty-one years as a Des
Moines police officer. The first was September 16, 2020, when Hunter witnessed
the suicide scene of his longtime friend and former partner. The second was June
6, 2021, when Hunter—struggling with his then-undiagnosed post-traumatic stress
disorder (PTSD)—drank “probably a bottle of whiskey” at a family gathering and
lashed out at police as they stopped him from driving away. His conduct that night
led to the termination of his employment.
Hunter sued the City of Des Moines for violations of the Iowa Civil Rights
Act, see Iowa Code § 216.6 (2021), alleging that he was discharged because of
his disability and that the City failed to accommodate his request for more time to
improve his mental health. A jury awarded him $2.6 million in damages.
On appeal from that verdict, the City contends that it was entitled to
judgment notwithstanding the verdict on each of Hunter’s claims or, alternatively,
that it should have been granted a new trial due to incorrect jury instructions and
improperly admitted evidence. We agree that the verdict on Hunter’s failure-to-
accommodate claim cannot stand because an excuse for prior misconduct is not
a reasonable accommodation. And because the district court incorrectly instructed
the jury that employers are liable for discriminatory motives they “do not
acknowledge or realize,” we remand for a new trial on Hunter’s discrimination
claim. 3
I. Background Facts and Proceedings
Hunter began working as a patrol officer for the Des Moines Police
Department in 2000. He held that position for the next two decades, during which
he received accolades from citizens and supervisors alike. Yearly performance
evaluations noted that Hunter kept a “calm demeanor even during high risk calls,”
was “professional and compassionate with victims,” and made “every effort to
know citizens in his district.” Aside from a one-day suspension for a traffic
infraction, his disciplinary record was unblemished. In May 2021, Hunter was
promoted to the rank of sergeant.
Witnesses at trial testified that police work requires a special ability to keep
calm under pressure. The City’s formal job description for the position of police
officer puts it this way:
Mental Requirements: Work under highly stressful and emotional conditions. Maintain control of emotions; keep personal feelings to self. Use sound judgment in emergency situations. Maintain intense concentration and alertness during stressful situations. Maintain alertness in extreme conditions, particularly when preceded by extended periods of relative low stress or monotony. . . .
Des Moines police sergeants must demonstrate the same “knowledge, skills and
abilities as a Police Officer,” including the ability “to work in chaotic and dangerous
situations while maintaining control over one’s emotions and composure.” There
is no dispute that Hunter’s supervisors believed he possessed all the qualifications
of a police sergeant when he was promoted. But beneath his professional façade,
Hunter’s mental health was faltering. 4
A. Hunter’s Mental-Health Decline
In September 2020, Joe Morgan, another Des Moines police sergeant, died
by suicide outside his home. Hunter and Morgan had been partners during
Hunter’s early years on the force. They developed a lasting friendship, and their
families spent time together outside of work. When Hunter learned about Sergeant
Morgan’s death, he raced to Morgan’s house to find emergency workers on the
scene. Hunter saw Morgan’s body in the driveway. His shirt had been removed,
exposing a gunshot wound to his chest.
The next morning, Hunter reported for roll call, where police department
leaders addressed Morgan’s death in a tone that Hunter considered callous. He
recalls Police Chief Dana Wingert telling the officers that “we’re never going to
know why” Morgan took his life, and “[w]e’re not going to waste time trying to figure
it out.” Because Morgan died by suicide, the City declined to extend him the burial
honors typically provided to officers killed in the line of duty. Hunter—who believes
Morgan’s own traumatic experiences in law enforcement contributed to his death—
viewed the City’s decision as a “message that . . . Morgan [w]as less than other
fallen officers” and as a sign of “distaste for mental-health issues.”
Des Moines Police Department policy requires that officers “involved in
incidents that result in serious injury or death to any person . . . attend at least two
counseling sessions.” About a week after Sergeant Morgan’s death, Hunter visited
his family counselor, Dr. David Grove, and reported that he was experiencing
“anxiety and some depression,” as well as “intrusive imagery of [Morgan’s]
suicide.” Dr. Grove opined that Hunter was experiencing acute stress disorder 5
caused by Morgan’s death and recommended that he return for psychotherapy.
Hunter did not follow up with Dr. Grove.
A few weeks later, Hunter attended a department-mandated counseling
session with Dr. Phil Ascheman, a City psychologist. They “talked about what
[Hunter] had witnessed” and the “mental health . . . aspect” of suicide. Hunter
recalled being “honest” but “careful” during this appointment, aware that Dr.
Ascheman was evaluating his fitness for duty. He did not disclose that he had
been diagnosed with acute stress disorder by Dr. Grove. When Dr. Ascheman
cleared Hunter for service, Hunter agreed. He testified at trial that, based on this
session, “I felt that I was probably dealing with things okay.”
But in late October, while reminiscing about Sergeant Morgan over dinner
with his wife and a friend, Hunter was struck by a wave of emotion. In his words,
“I got to a point where I couldn’t control my emotions basically. I was very upset,
crying and inconsolable.” The group called one of Hunter’s coworkers, Sergeant
Tony Ballantini, who came out to speak with Hunter. They talked about the tragedy
of Morgan’s death and their mutual grief. Ballantini suggested that the men visit a
counselor together, but Hunter never followed through with that offer. He also
asked Ballantini not to tell command staff about their conversation because he was
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 24-0735 Filed October 1, 2025
MATTHEW LEWIS HUNTER, Plaintiff-Appellee,
vs.
CITY OF DES MOINES, IOWA, Defendant-Appellant, ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
An employer appeals the denial of its motions for new trial and judgment
notwithstanding the verdict after trial on a former employee’s disability
discrimination claims. REVERSED AND REMANDED.
Michelle Mackel-Wiederanders (argued) and Luke DeSmet, Assistant City
Attorneys, Des Moines, for appellant.
David Albrecht (argued) of Fiedler Law Firm, P.L.C., Johnston, and Kellie
L. Paschke and Kelly Verwers Meyers of Skinner & Paschke, P.L.L.C., West Des
Moines, for appellee.
Heard at oral argument by Tabor, C.J., and Greer, Ahlers, Badding, and
Sandy, JJ. 2
BADDING, Judge.
Nobody’s career should be defined by its lowest points. But here, we must
dwell on two of the worst days in Matthew Hunter’s twenty-one years as a Des
Moines police officer. The first was September 16, 2020, when Hunter witnessed
the suicide scene of his longtime friend and former partner. The second was June
6, 2021, when Hunter—struggling with his then-undiagnosed post-traumatic stress
disorder (PTSD)—drank “probably a bottle of whiskey” at a family gathering and
lashed out at police as they stopped him from driving away. His conduct that night
led to the termination of his employment.
Hunter sued the City of Des Moines for violations of the Iowa Civil Rights
Act, see Iowa Code § 216.6 (2021), alleging that he was discharged because of
his disability and that the City failed to accommodate his request for more time to
improve his mental health. A jury awarded him $2.6 million in damages.
On appeal from that verdict, the City contends that it was entitled to
judgment notwithstanding the verdict on each of Hunter’s claims or, alternatively,
that it should have been granted a new trial due to incorrect jury instructions and
improperly admitted evidence. We agree that the verdict on Hunter’s failure-to-
accommodate claim cannot stand because an excuse for prior misconduct is not
a reasonable accommodation. And because the district court incorrectly instructed
the jury that employers are liable for discriminatory motives they “do not
acknowledge or realize,” we remand for a new trial on Hunter’s discrimination
claim. 3
I. Background Facts and Proceedings
Hunter began working as a patrol officer for the Des Moines Police
Department in 2000. He held that position for the next two decades, during which
he received accolades from citizens and supervisors alike. Yearly performance
evaluations noted that Hunter kept a “calm demeanor even during high risk calls,”
was “professional and compassionate with victims,” and made “every effort to
know citizens in his district.” Aside from a one-day suspension for a traffic
infraction, his disciplinary record was unblemished. In May 2021, Hunter was
promoted to the rank of sergeant.
Witnesses at trial testified that police work requires a special ability to keep
calm under pressure. The City’s formal job description for the position of police
officer puts it this way:
Mental Requirements: Work under highly stressful and emotional conditions. Maintain control of emotions; keep personal feelings to self. Use sound judgment in emergency situations. Maintain intense concentration and alertness during stressful situations. Maintain alertness in extreme conditions, particularly when preceded by extended periods of relative low stress or monotony. . . .
Des Moines police sergeants must demonstrate the same “knowledge, skills and
abilities as a Police Officer,” including the ability “to work in chaotic and dangerous
situations while maintaining control over one’s emotions and composure.” There
is no dispute that Hunter’s supervisors believed he possessed all the qualifications
of a police sergeant when he was promoted. But beneath his professional façade,
Hunter’s mental health was faltering. 4
A. Hunter’s Mental-Health Decline
In September 2020, Joe Morgan, another Des Moines police sergeant, died
by suicide outside his home. Hunter and Morgan had been partners during
Hunter’s early years on the force. They developed a lasting friendship, and their
families spent time together outside of work. When Hunter learned about Sergeant
Morgan’s death, he raced to Morgan’s house to find emergency workers on the
scene. Hunter saw Morgan’s body in the driveway. His shirt had been removed,
exposing a gunshot wound to his chest.
The next morning, Hunter reported for roll call, where police department
leaders addressed Morgan’s death in a tone that Hunter considered callous. He
recalls Police Chief Dana Wingert telling the officers that “we’re never going to
know why” Morgan took his life, and “[w]e’re not going to waste time trying to figure
it out.” Because Morgan died by suicide, the City declined to extend him the burial
honors typically provided to officers killed in the line of duty. Hunter—who believes
Morgan’s own traumatic experiences in law enforcement contributed to his death—
viewed the City’s decision as a “message that . . . Morgan [w]as less than other
fallen officers” and as a sign of “distaste for mental-health issues.”
Des Moines Police Department policy requires that officers “involved in
incidents that result in serious injury or death to any person . . . attend at least two
counseling sessions.” About a week after Sergeant Morgan’s death, Hunter visited
his family counselor, Dr. David Grove, and reported that he was experiencing
“anxiety and some depression,” as well as “intrusive imagery of [Morgan’s]
suicide.” Dr. Grove opined that Hunter was experiencing acute stress disorder 5
caused by Morgan’s death and recommended that he return for psychotherapy.
Hunter did not follow up with Dr. Grove.
A few weeks later, Hunter attended a department-mandated counseling
session with Dr. Phil Ascheman, a City psychologist. They “talked about what
[Hunter] had witnessed” and the “mental health . . . aspect” of suicide. Hunter
recalled being “honest” but “careful” during this appointment, aware that Dr.
Ascheman was evaluating his fitness for duty. He did not disclose that he had
been diagnosed with acute stress disorder by Dr. Grove. When Dr. Ascheman
cleared Hunter for service, Hunter agreed. He testified at trial that, based on this
session, “I felt that I was probably dealing with things okay.”
But in late October, while reminiscing about Sergeant Morgan over dinner
with his wife and a friend, Hunter was struck by a wave of emotion. In his words,
“I got to a point where I couldn’t control my emotions basically. I was very upset,
crying and inconsolable.” The group called one of Hunter’s coworkers, Sergeant
Tony Ballantini, who came out to speak with Hunter. They talked about the tragedy
of Morgan’s death and their mutual grief. Ballantini suggested that the men visit a
counselor together, but Hunter never followed through with that offer. He also
asked Ballantini not to tell command staff about their conversation because he was
worried it might “hinder [his] ability to get promoted.” Hunter later explained that,
when he met with Ballantini, “I didn’t know that what I was experiencing wasn’t
normal.”
That difference remained elusive for Hunter six months later, when he
experienced another triggering event at work. On May 31, 2021, Hunter
responded to the scene of a suspicious death at a Des Moines home. He found 6
an elderly man deceased on the couch with a self-inflicted gunshot wound to his
chest. The scene immediately caused Hunter to see images of Sergeant Morgan’s
body. He silently retreated to the attic of the house to “try to collect [himself].”
When another officer checked on Hunter, he denied any distress. Later, Hunter’s
supervisor asked if he was okay after visiting the suicide scene. Hunter
responded, “Yeah, I’m fine.”
B. Hunter’s Arrest
About a week later, on the evening of June 5, 2021, Hunter attended a
backyard gathering at a family member’s home outside Des Moines. The party
was to celebrate a recent marriage, but Hunter’s mind was elsewhere. He testified:
There was a lot of emotion. I mean, those type of happy events should be happy. But you start down a road—or at least I did— thinking about [Sergeant Morgan’s] kids getting married, how he’s not going to see those things, how he’s not going to be able to celebrate those milestones, so to speak. So that was weighing heavily on my mind. Also, with that other suicide that had just happened a few days prior, that was—there was a lot there, so to speak. . . . It’s kind of like a loop sometimes.
To silence his thoughts, Hunter started drinking. He consumed “probably a bottle
of whiskey” during his time at the party. At some point, other attendees brought
out marijuana. Although he was intoxicated, Hunter knew he needed to leave. He
got into his truck and began to drive away. Hunter’s wife ran after, pounding the
tailgate to get him to stop.
Less than a block later, Indianola police sergeant Justin Keller encountered
Hunter and his wife while on routine patrol. Believing he had chanced on “a
domestic abuse situation,” Sergeant Keller activated his lights and approached
Hunter’s truck. Hunter stepped out. He was immediately belligerent and 7
noncooperative, and he refused orders to get back into the truck. As other officers
arrived, Hunter taunted and insulted them, shouting: “I’m not in your face.” “Do you
want me to get in your fucking face?” “Fuck you.” “You want to fuck with me?” “I’ll
fuck you.” “Fucking cunt.” “You want it? You want it? You wanna fuck with me?
Fuck with me.” “You are Podunk fucking nothing.” Sergeant Keller arrested Hunter
for public intoxication. Hunter resisted the officer’s efforts to apply handcuffs.
Hunter’s aggressive behavior continued as he was booked and transported
to an out-of-county jail. Among other hostilities, he warned booking staff that they
were “all going to lose [their] jobs,” that he was “a fucking sergeant at the Des
Moines Police Department,” and that he would “fuck [them] over” if they “ever came
to Des Moines.” He told a transport officer, “I am going to fuck your life up,” and
“I will kill you and your family.” Some of these individuals later testified that they
did not consider Hunter’s threats to be genuine. Upon arrival at the jail, Hunter
consented to a preliminary breathalyzer test, which returned an estimated blood-
alcohol content of .210.
C. Disciplinary Process
The City placed Hunter on administrative leave pending an investigation
into his conduct. During an interview with the department’s Office of Professional
Standards on June 8, 2021, Hunter initially attributed his behavior to his
intoxication. He could not recall making threats to the jailers and transport officer.
Later in the interview, he divulged:
I’ve been having some issues with Joe [Morgan], and so I’m not saying that is an excuse for this. I am just saying that that’s been a struggle . . . . Does it relate? I’m not sure, but I know that that’s been an issue that [has] been ongoing, and I’m trying to handle and deal with. But there’s no excuse for those things if I said them other than 8
really bad judgment, and obviously I was severely intoxicated, which there’s no excuse for that either. .... . . . [L]ike I said, I don’t have a great explanation as to my actions other than, you know, I’ve been trying to get some help and deal with Joe being gone and that’s been an ongoing battle. . . . [T]here’s things that are probably released a little bit when I’ve been drinking that normally wouldn’t be there.
Hunter also told the interviewers about the suicide scene he had witnessed the
week before, noting it was the “first suicide by self-inflicted gunshot wound . . . to
[the] chest” he had responded to since Sergeant Morgan’s death.
The next day, Hunter emailed Chief Wingert and other supervisors,
informing them that he had contacted the department’s employee assistance
program for “evaluation and counseling” and made an appointment with a therapist
for “treatment in relation to Sergeant Joe Morgan’s suicide.” Hunter stated that he
had “struggled with the trauma of [Morgan’s] death” and that he had mistakenly
“believed that [he] could handle any situation with no outside help.” After
apologizing for his behavior, Hunter closed by writing, “I hope to have your
support.”1
After the fact-finding interview with the Office of Professional Standards, two
of Hunter’s superiors—a captain and the assistant chief—recommended
termination. Upon learning of those recommendations, Hunter requested review
by the Chief’s Guidance Committee, an advisory panel of three police department
supervisors. Following an informal hearing, the panel returned its findings and
1 On June 12, Hunter sent a second email to Chief Wingert expressing additional
regrets for making homophobic remarks to the transport officer. He acknowledged that he “needed to get help for the trauma” of Morgan’s suicide and that “in no way could [he] handle that on [his] own.” 9
recommendations on June 23. All three panelists agreed that Hunter had violated
the department’s standards of conduct, including those that required officers to
“cooperate with all law enforcement agencies” and prohibited them from behaving
“in a manner, on or off duty, that casts doubt on their integrity, honesty, judgment,
or character; brings discredit to this agency; or impairs the agency’s efficient and
effective operation.” A panelist nominated by Hunter recommended a thirty-day
suspension, fitness for duty evaluation, and mandatory counseling. The other two
recommended termination. All three panelists suggested that Hunter “may have
issues with PTSD and Alcoholism.”
On June 28, Hunter attended a final pre-disciplinary meeting with Chief
Wingert. During the meeting, Hunter expressed his remorse and told the chief that
he “did not foresee, nor would I have been able to see” the extent of his mental-
health problem until his arrest on June 5. Hunter disclosed that he was suffering
from PTSD—a diagnosis he had received from Dr. Grove just a few days before
the meeting. He told Chief Wingert that he was “here asking for a second chance,”
and that, with time and counseling, he could get “back to the place where [he] was.”
The chief informed Hunter that he would need more than “a day or two” to review
the case and that Hunter should not expect an immediate decision.
But the next day, the City terminated Hunter’s employment for violating the
police department standards of conduct. At trial, Chief Wingert testified that his
decision to terminate Hunter was based on a combination of facts from the June 5
incident, including Hunter’s resistance to arrest, his insults and slurs toward other
law enforcement officers, his operation of a vehicle while intoxicated, and—in what 10
Chief Wingert deemed Hunter’s “most egregious” policy violation—his attempt to
intimidate other officers by invoking his authority as a Des Moines police sergeant.
D. The Lawsuit
Hunter sued the City of Des Moines, asserting violations of the Iowa Civil
Rights Act. The case proceeded to trial on two claims. First, Hunter alleged that
the City engaged in disability discrimination by terminating him, at least in part,
because of his PTSD. Second, he claimed that the City denied him a reasonable
accommodation when it rejected his request for additional time to work on his
mental health. Following five days of evidence, the jury returned a verdict finding
the City liable on both claims. It awarded Hunter over $2.6 million in front pay,
back pay, and emotional distress damages.
The City moved for judgment notwithstanding the verdict. Among other
grounds, it argued that Hunter had failed to prove that he was qualified for his role,
failed to show he was terminated for any reason other than misconduct, and failed
to establish that he requested an accommodation, “reasonable or otherwise.”
Alternatively, the City requested a new trial, alleging procedural, evidentiary, and
instructional errors. The district court denied the City’s post-trial motions and
granted Hunter’s request for $426,000 in attorney fees, expenses, and costs. This
appeal followed.
II. Discussion
The City asserts—by our tally—ten distinct claims of error challenging the
sufficiency of the evidence, the district court’s jury instructions, the admission of
evidence at trial, and Hunter’s attorney fee award. We approach the issues in a 11
different order than they are presented by the City’s appellate brief, beginning with
the City’s challenges to the merits of Hunter’s claims.
A. Disability Discrimination
The City argues that the district court erred by denying judgment
notwithstanding the verdict on Hunter’s disability discrimination claim. Our review
is for correction of errors at law. Selden v. Des Moines Area Cmty. Coll., 2 N.W.3d
437, 443 (Iowa 2024). We must uphold the district court’s decision if, when viewing
the record in the light most favorable to Hunter, substantial evidence supports each
element of his claim. White v. State, 5 N.W.3d 315, 323 (Iowa 2024). “Evidence
is substantial if reasonable minds would accept the evidence as adequate to reach
the same findings.” Id. (cleaned up).
The Iowa Civil Rights Act prohibits an employer from “discharg[ing] any
employee . . . because of the . . . disability of such . . . employee.” Iowa Code
§ 216.6(1)(a).2 To prove a claim of disability discrimination under the statute, a
claimant must initially establish: “(1) he or she is a disabled person; (2) he or she
is qualified to perform the job, with or without an accommodation; and (3) he or
she suffered an adverse employment decision because of the disability.” Casey’s
Gen. Stores, Inc. v. Blackford, 661 N.W.2d 515, 519 (Iowa 2003); accord Rumsey
v. Woodgrain Millwork, Inc., 962 N.W.2d 9, 22 (Iowa 2021). The parties stipulated
at trial that Hunter’s PTSD was a protected disability under the Iowa Civil Rights
2 While we typically look to the law of the case in reviewing for sufficiency of the
evidence, “the jury instructions do not limit our analysis” when, as here, relevant instructions are in dispute. Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d 9, 21 (Iowa 2021). 12
Act. However, the City denies that Hunter satisfied the second and third elements
of his discrimination claim. We address those elements in turn.
1. Hunter’s Qualifications
The City first argues that Hunter’s undisputed PTSD diagnosis renders him
unqualified to perform the work of a police sergeant. It cites federal court decisions
finding emergency workers experiencing PTSD or similar mental disabilities could
not be relied upon to “react quickly and calmly in high-stress and potentially life-
threatening situations.” Jordan v. City of Union City, 646 F. App’x 736, 741 (11th
Cir. 2016) (per curiam) (finding a police officer was “likely to have unpredictable
and unpreventable anxiety episodes while on duty that would affect his ability to
process and manage stress”); see also Abler v. Mayor and City of Baltimore,
No. 18-3668, 2022 WL 824850, at *8–9 (D. Md. Mar. 18, 2022) (finding a plaintiff
failed to show “how, despite his PTSD and ‘extremely debilitating’ medical
conditions, he was able to perform the essential functions of a firefighter, such as
extinguishing fires and rescuing emergency victims”).
We may look to federal case law for guidance when analyzing disability
discrimination claims under the Iowa Civil Rights Act. See, e.g., Rumsey, 962
N.W.2d at 29. But the City’s authorities are of little help here, because the
qualified-individual element of a discrimination claim is a fact-intensive analysis.
We must apply an “individualized inquiry” to determine whether Hunter was
qualified for his job “despite his . . . disability.” Goodpaster v. Schwan’s Home
Serv., Inc., 849 N.W.2d 1, 15 (Iowa 2014); accord Bearshield v. John Morrell &
Co., 570 N.W.2d 915, 923 (Iowa 1997) (“An employer’s reliance on myths, fears,
and stereotypes is directly contrary to the ADA and ICRA’s requirement that 13
persons be individually assessed as to their ability to perform the job in question.”).
In doing so, we ask whether Hunter could “perform the essential functions of the
position, with or without reasonable accommodation.” Rumsey, 962 N.W.2d at 22
(cleaned up).
Des Moines police sergeants are required “to work in chaotic and
dangerous situations while maintaining control over [their] emotions.” According
to the City, the evidence shows that Hunter’s PTSD symptoms could interfere with
his ability to perform this essential function. Dr. Grove testified that when Hunter
was terminated, he was experiencing flashbacks, impaired concentration,
irritability, loss of emotional control, and intense distress when exposed to cues.
He also acknowledged that Hunter could not predict how his symptoms would
impact him each day, that Hunter may unexpectedly lose control of his behavior,
and that simply “holding or being exposed to guns” might be triggering. Hunter
continued to experience PTSD symptoms up to the time of trial. The City contends
the risk of Hunter being triggered while on duty disqualifies him from the work of a
police sergeant.3
3 By implying that Hunter could pose a safety risk to others if he experienced an
episode of PTSD while on duty, the City appears to assert what federal courts call a “direct threat” defense. See, e.g., McKenzie v. Benton, 388 F.3d 1342, 1353–55 (10th Cir. 2004) (upholding verdict in favor of employer where jury found law enforcement applicant with PTSD posed a direct threat to herself and others). We question whether the essential-functions analysis is the best fit for this type of argument. See Goodpaster, 849 N.W.2d at 15 (noting “conceptual daylight would ordinarily exist between the ‘essential function’ aspect of a prima facie case of disability discrimination and the ‘direct threat’ defense under the ADA”). However, the jury in this case was not instructed on the direct-threat defense; it was asked to determine whether Hunter “could have performed the essential functions” of his role, with or without accommodation, at the time of his discharge. Consistent with that instruction, the City maintains on appeal that Hunter was disqualified under the essential-functions test. So we confine our review to that analysis. 14
But other evidence cuts against the City’s worries. Dr. Grove also testified
that some individuals with PTSD can reliably control their symptoms and function
in the world. For approximately six months after Sergeant Morgan’s death, Hunter
continued to successfully perform his police functions while privately coping with
his mental-health struggles. On the one occasion he experienced PTSD
symptoms while at work—the scene of the May 31 suicide—he managed his
emotions by collecting himself in another room. The City’s own psychologist
concluded Hunter was fit for duty in October 2020. And perhaps most importantly,
Chief Wingert agreed that Hunter was capable of performing the functions of a
sergeant when he was promoted less than a month before his arrest.
The City suggests we should look past these facts because “Hunter’s
conduct [on June 5] alone disqualified him from continuing to work as a police
officer.” But that argument asks us to weigh the competing evidence as to Hunter’s
qualifications, which is not a part of our review. See Becker v. D & E Distrib. Co.,
247 N.W.2d 727, 730 (Iowa 1976) (“The weight and credibility of testimony are
matters for the jury.”). It was the jury’s role to decide whether Hunter’s behavior
during the June 5 arrest or his otherwise satisfactory record was the better
indicator of his ability to perform his essential functions going forward. Viewing the
evidence in the light most favorable to Hunter, we find substantial proof that he
remained qualified for the position of police sergeant despite his disability. 4
4 Because we find substantial evidence that Hunter could perform the duties of a
police sergeant without accommodation, we need not consider his alternative argument that he could have been reassigned to an administrative role. See Rumsey, 962 N.W.2d at 22–23 (noting that an employee’s inability to perform the essential functions of a current job assignment “is not the end of the inquiry” and 15
2. Motivating Factor
The City also contends Hunter failed to show he was terminated “because
of [his] . . . disability.” Iowa Code § 216.6(1)(a). Our supreme court has adopted
a motivating-factor standard for evaluating this element. See Hawkins v. Grinnell
Reg’l Med. Ctr., 929 N.W.2d 261, 271 (Iowa 2019) (noting this standard is “lower
. . . than the determining-factor standard” applied to other claims). “Discrimination
is a ‘motivating factor’ in an adverse action if an employee’s status as a member
of a protected class ‘played a part’ in the employer’s decision.” Haskenhoff v.
Homeland Energy Sols., LLC, 897 N.W.2d 553, 582 (Iowa 2017) (citation omitted).
The City argues that it was entitled to judgment notwithstanding the verdict
because “Hunter’s termination was based on his egregious conduct” alone and
because the City “would have made the same decision” regardless of Hunter’s
disability. We do not find the record to be so one-sided.
“[A] discriminatory motive will rarely be announced or readily apparent.”
Hamer v. Iowa C.R. Comm’n, 472 N.W.2d 259, 263 (Iowa 1991). Instead, a plaintiff
often must rely on circumstantial evidence to prove this element of their claim.
Hunter sought to raise an inference of discrimination through a number of
circumstances. Foremost was the timing of his termination, which came one day
after he disclosed his PTSD diagnosis. See DeBoom v. Raining Rose, Inc., 772
N.W.2d 1, 8 (Iowa 2009) (noting that “particularly suspicious” timing, while not
determinative, may be evidence of a discriminatory motive). This short turnaround
defied Chief Wingert’s assurance that he would dwell on Hunter’s case for more
that “an employee can also show he is a qualified individual by identifying another position to which he could have been reassigned”). 16
than “a day or two.” Hunter also pointed to evidence of mental-health stigma
among police department leadership, including Chief Wingert’s comments about
Sergeant Morgan’s suicide and the denial of burial honors. See McClure v. E. I.
du Pont de Nemours & Co., 23 N.W.3d 33, 47 (Iowa 2025) (explaining “[e]vidence
of a discriminatory atmosphere can be relevant” to showing an employer’s state of
mind); Valdez v. W. Des Moines Cmty. Sch., 992 N.W.2d 613, 640 (Iowa 2023)
(noting evidence of past discrimination may be more relevant when “the same
decisionmakers were involved”).
In addition, Hunter introduced comparator evidence suggesting non-
disabled Des Moines police officers have received less serious discipline after
engaging in equal or greater misconduct. See Feeback v. Swift Pork Co., 988
N.W.2d 340, 350 (Iowa 2023) (explaining an inference of discrimination may be
found where a disabled plaintiff was treated differently than other non-disabled
employees disciplined for violations of “comparable seriousness” (citation
omitted)). This evidence showed that the City retained other officers despite
standard-of-conduct violations for involvement in off-duty bar fights, interference
with an investigation, use of excessive force, and inappropriate sexual conduct.
Unlike Hunter, none of the officers disciplined for those incidents attributed their
behavior to PTSD.5
5 The City contends that none of these employees were similarly situated to Hunter,
and so the jury “should not have learned of the comparator evidence.” We agree with Hunter that the City failed to preserve error on this issue because it did not object when the evidence was offered at trial. See Quad City Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 89 (Iowa 2011) (“[E]rror claimed in a court’s ruling on a motion in limine is waived unless a timely objection is made when the evidence is offered at trial.”). The City argues that it was not required to object because the district court’s ruling denying its motion in limine to exclude the 17
Whether a discriminatory motive played a role in an adverse employment
decision is an elusive question of subjective intent and—on this record—one that
was properly left for the jury. From the circumstantial evidence presented by
Hunter, a reasonable factfinder could infer that his PTSD was a motivating factor
in the disciplinary decision.6 We reject the City’s argument that it is nevertheless
entitled to judgment because it would have made the same decision regardless of
Hunter’s disability. See Vroegh v. Iowa Dep’t of Corr., 972 N.W.2d 686, 696 (Iowa
2022) (describing the “same-decision” affirmative defense). The burden is on the
employer to make that showing. Hawkins, 929 N.W.2d at 272. Given Hunter’s
evidence that other officers received lesser discipline for serious misconduct, we
cannot conclude that this is the “exceptional case” in which the City’s affirmative
defense must prevail as a matter of law. Bessman v. Harding, 176 N.W.2d 129,
130 (Iowa 1970).
evidence was final. But that exception applies only when the court’s ruling “leaves no question that the challenged evidence will or will not be admitted at trial.” Id. at 90. The ruling here was equivocal, with the court stating that it would allow the evidence “at least at this stage.” See State v. Curtis, No. 22-1069, 2023 WL 4104116, at * 3 (Iowa Ct. App. June 21, 2023) (noting the “use of the term ‘at this time’ suggests that there might have come a time during the trial where the ruling could be reconsidered” and finding the limine ruling was not final). An objection was accordingly required. Cf. Quad City Bank, 804 N.W.2d at 90–91 (finding a limine ruling was final when the court “did not equivocate or state it would reconsider its ruling at trial”). 6 We reach this conclusion based on the record evidence and not, as Hunter urges,
because terminating an employee “based on conduct shown to be causally connected to the employee’s disability” satisfies the motivating-factor standard as a matter of law. Boelman v. Manson State Bank, 522 N.W.2d 73, 77 (Iowa 1994). The jury in this case was not instructed to evaluate the motivating-factor element based on the cause of Hunter’s misconduct. 18
Because substantial evidence supports a finding in Hunter’s favor on each
element of his disability discrimination claim, we conclude the district court did not
err in denying the City’s motion for judgment notwithstanding the verdict.
B. Failure to Accommodate
The City next claims it was entitled to judgment as a matter of law on
Hunter’s failure-to-accommodate claim because “Hunter never requested an
accommodation for his PTSD” and, even if he did, an excuse from past misconduct
is not a reasonable accommodation.7 We agree on the latter point. As a matter
of law, Hunter failed to show he was denied a reasonable accommodation.
To establish a claim for failure to accommodate, the plaintiff “must prove he
was a qualified individual, his employer knew of his disability, he requested a
reasonable accommodation, and he suffered an adverse employment action.”
Rumsey, 962 N.W.2d at 22. Unlike the disability discrimination claim, a plaintiff
who alleges a failure to accommodate need not show discriminatory intent. See
Withers v. Johnson, 763 F.3d 998, 1003 (8th Cir. 2014). Still, failure to
accommodate “is not . . . a strict-liability claim.” Rumsey, 962 N.W.2d at 31. An
employer cannot be liable when the plaintiff’s disability is neither obvious nor
disclosed. Deeds v. City of Marion, 914 N.W.2d 330, 341, 346 (Iowa 2018)
7 Hunter asserts that the City failed to preserve error on its challenge to the reasonableness of the requested accommodation. We disagree. In moving for a directed verdict at trial, the City argued in part that “Mr. Hunter has not shown what could have been done to reasonably accommodate him” and that “ignoring past misconduct is not a reasonable accommodation.” The district court rejected this argument, which the City unsuccessfully renewed in its post-trial motion. Error is preserved. See Ragee v. Archbold Ladder Co., 471 N.W.2d 794, 798 (Iowa 1991) (explaining review for denial of a motion for judgment notwithstanding the verdict is “proper as to those grounds raised in [the] defendant’s directed verdict motion”). 19
(explaining an “employee can’t expect the employer to read his mind,” and so an
employer is typically not liable “for failing to accommodate a disability of which it
had no knowledge” (citation omitted)). And while employers have a duty to “work
in concert to achieve a reasonable accommodation once the employee has
expressed a desire”—commonly known as the “interactive process”—it is the
plaintiff’s burden to “show a specific [accommodation] was available.” Casey’s
Gen. Stores, 661 N.W.2d at 521; see also Slaughter v. Des Moines Univ. Coll. of
Osteopathic Med., 925 N.W.2d 793, 809 (Iowa 2019).
The parties dispute exactly when Hunter requested an accommodation for
his PTSD and exactly what accommodation he sought. Hunter argues that he
alluded to his need for assistance at several points in the disciplinary process,
albeit in an “initially vague” manner, and that he definitively expressed a desire for
accommodation after disclosing his diagnosis to Chief Wingert.8 At trial, Hunter
testified that he was looking for “any type of accommodation that would allow [him]
to remain employed, seek the help that [he] needed, possibly . . . a transfer or
something [of] that nature.” The City contends that Hunter’s communications
before the pre-disciplinary meeting were insufficient to give notice of a mental
disability and that Hunter’s only requests during that meeting—for a “second
chance” and time to get “back to the place where [he] was”—are unreasonable as
8 To be sure, there is no evidence that Hunter ever asked for an “accommodation”
during his pre-disciplinary meeting. When asked at trial whether he requested “an accommodation for your PTSD during that meeting,” Hunter answered, “No.” On appeal, Hunter argues that his comments to Chief Wingert, while indirect, were legally sufficient to trigger the interactive process. 20
a matter of law. Ultimately, we need not reach most of these questions.9 Even
accepting Hunter’s interpretation of the facts (as we must for purposes of our
review), the timing of his accommodation request defeats his claim.
Iowa courts have made clear that “an employee who engages in terminable
conduct cannot avoid the consequences of his actions by then requesting an
accommodation for those actions.” Rumsey, 962 N.W.2d at 31 (citing
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 906 (8th Cir. 2015)). In
Rumsey, a plaintiff with a hearing disability requested a sign language interpreter
for a meeting with human resources but was fired for insubordination before the
meeting occurred. Id. at 18–19. Reviewing his claims for failure to accommodate
and retaliation, the supreme court observed that “requesting an accommodation
following . . . insubordinate conduct [is] too little too late.” Id. at 32. But because
the record involved factual disputes about the extent of the misconduct and the
basis for termination, the court affirmed the denial of a directed verdict. Id.
In another case, our court similarly found that an employee could not excuse
himself from discipline by attributing his derogatory outbursts to a chemical
addiction. Fitzgerald v. Hy-Vee, Inc., No. 16-0462, 2017 WL 936121, at *10 (Iowa
Ct. App. Mar. 8, 2017). Following the same line of federal decisions later cited in
Rumsey, we explained that “liability is not established where an employee engages
9 Nor do we need to speculate how the jury answered them. The district court’s marshalling instruction permitted a verdict in favor of Hunter if the jury found, among other elements, that the City failed to provide “time as requested” or “any other reasonable accommodation.” A separate instruction listed “rotating employee job duties,” “job restructuring,” “time off,” “assistance from other employees,” and “modifications of equipment” as examples of reasonable accommodations. 21
in misconduct, learns of an impending adverse employment action, and then
informs his employer of a disability that is the supposed cause of the prior
misconduct and requests an accommodation.” Id. (cleaned up). The employee in
Fitzgerald admitted that the misconduct occurred, and there was no genuine
dispute that he was fired for that reason. Id. at *3, *8. So, we affirmed summary
judgment for the employer. Id. at *10.
The misconduct rule recognizes the forward-looking purpose of the
reasonable-accommodation requirement. The EEOC has explained that
“reasonable accommodation is always prospective,” and so it is “in the employee’s
interest to request a reasonable accommodation before performance suffers or
conduct problems occur.” U.S. Equal Emp. Opportunity Comm’n, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act at 36 & n.103 (Oct. 17, 2002). Consistent with that
guidance, federal appellate courts have regularly rejected failure-to-accommodate
claims based on requests to excuse past misconduct. See, e.g., Hrdlicka v.
General Motors, LLC, 63 F.4th 555, 571 (6th Cir. 2023) (finding an employee’s
“last-minute request for a transfer” was unreasonable after she had violated the
terms of final-warning attendance letter); Trahan v. Wayfair Maine, LLC, 957 F.3d
54, 66 (1st Cir. 2020) (affirming summary judgment where an employee’s request
for a new seat assignment to accommodate her previously undisclosed PTSD
symptoms “would have required forgiveness of her fireable misconduct and a fresh
start at Wayfair”); Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1317–18 (10th Cir.
2017) (finding a customer service employee’s alleged request for an
accommodation after dropping customer calls was, at most, an unreasonable 22
“request for retroactive leniency”); Schaffhauser, 794 F.3d at 906 (finding an
employee’s request to keep his position despite a racist remark attributed to his
medical impairment was not a request for reasonable accommodation).
The uncontested facts in this case compel the same result. Hunter does
not contend that he ever requested an accommodation for his PTSD before his
arrest on June 5, 2021. Indeed, Hunter testified that he did not appreciate his need
for help until after that date. Prior to his arrest, when Hunter experienced
symptoms of his mental-health decline, he took affirmative steps to hide them from
the department. He did not disclose Dr. Grove’s initial diagnosis to Dr. Ascheman
during his fitness-for-duty appointment. He asked Sergeant Ballantini to keep his
off-duty breakdown a secret. And he denied any distress from the May 31 suicide
call when two officers asked him if he was okay. These decisions deprived the
City of any opportunity to accommodate Hunter’s mental-health decline before it
impacted his performance. See Deeds, 914 N.W.2d at 341 (“It is well established
that the employee or applicant bears the burden of informing the employer of his
or her disability.”). Only after his arrest, while on administrative leave and
awaiting discipline, did Hunter seek assistance managing the symptoms of his
PTSD.10 At that point, precisely what Hunter wanted—time off, a reassignment, or
10 We recognize that Hunter was not formally diagnosed with PTSD until shortly
before his termination. However, that development had no effect on his accommodation rights. Under chapter 216, a disability is identified by its symptoms, not by its label. See Iowa Code § 216.2(5) (2021) (“‘Disability’ means the physical or mental condition of a person which constitutes a substantial disability . . . .”); McClure, 23 N.W.3d at 42 (explaining a substantial disability is one that “substantially limits one or more major life activities”); Barnes v. Nw. Iowa Health Ctr., 238 F. Supp. 2d 1053, 1069 (N.D. Iowa 2002) (noting “diagnoses alone are insufficient to qualify a person as disabled” for purposes of state and federal discrimination statutes “because symptoms vary in degree and extent from person 23
something else—was immaterial. Any accommodation he might have identified
was in lieu of termination. As Hunter’s appellate brief succinctly puts it, he was
asking “to keep his job.” Such a request is “better understood as a plea either for
forgiveness or for a second chance.” Trahan, 957 F.3d at 66. It cannot support a
claim for failure to accommodate. Rumsey, 962 N.W.2d at 31; Fitzgerald, 2017
WL 936121, at *10; see also McElwee v. County of Orange, 700 F.3d 635, 641
(2d Cir. 2012) (“A requested accommodation that simply excuses past misconduct
is unreasonable as a matter of law.”).
Hunter counters that employers “are still prohibited from treating disabled
employees worse than their non-disabled peers.” We agree that the City may not
impose harsher discipline on Hunter because of his PTSD. But that’s the premise
of his separate claim for disability discrimination. Hunter’s failure-to-accommodate
claim, by contrast, suggests that an employer must privilege a disabled employee
by excusing misconduct for which a non-disabled coworker would be terminated.
That is not what the Iowa Civil Rights Act provides. See Casey’s Gen. Stores, 661
N.W.2d at 524 n.5 (explaining “our statute protects against disability” discrimination
but “does not establish a preference for disabled workers”).
Even when viewing the record in the light most favorable to Hunter, no
reasonable juror could find he requested a reasonable accommodation for his
PTSD. His only request was for leniency toward his prior misconduct. The district
to person”). So, even if Hunter did not know his mental-health condition was diagnosable prior to his June 5 misconduct, that does not excuse his failure to alert the City to his symptoms. 24
court erred by denying the City’s motion for judgment notwithstanding the verdict
on Hunter’s failure-to-accommodate claim.
C. Jury Instructions
Having addressed the City’s challenges to the merits, we turn to its claims
of instructional error. The City contends it is entitled to a new trial because the
district court gave the jury an instruction that altered the elements of Hunter’s
discrimination claim and because it refused to give two other instructions proposed
by the City.
“We review the district court’s jury instructions for prejudicial error,
considering the instructions as a whole.” Des Moines Civ. & Hum. Rts. Comm’n v.
Knueven, 988 N.W.2d 694, 700 (Iowa 2023). The court’s instructions must
“convey the applicable law in such a way that the jury has a clear understanding
of the issues it must decide.” Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 749 (Iowa
2006). Reversal is warranted where the instructions have “misled the jury” or
where the court “materially misstates the law.” DeBoom, 772 N.W.2d at 5 (citations
omitted).
1. Instruction 26
At trial, Hunter asked the district court to deliver a jury instruction on
“stereotypes.” The proposed instruction—which was later adopted verbatim as
Instruction 26—stated:
Unlawful discrimination sometimes happens without the decisionmaker having planned, thought out, or even acknowledged to himself or herself that it is taking place. The law acknowledges the effects of society’s stereotypes on employers in their decision making, and that biased decision making 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 25
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 Defendant treated Matthew Hunter differently than they would have if he had not had a disability or if he had not requested a reasonable accommodation—even if the managers do not acknowledge or realize their own motives—you may find in favor of Mr. Hunter.
(Emphasis added.)
The City objected to the instruction, arguing Iowa’s motivating-factor
standard precludes liability for discriminatory motives that decision-makers “do not
acknowledge or realize.” Hunter responded that the instruction would not change
his burden to show the City “treated [him] differently because of his disability”—it
merely clarified that “intentional animus” is not required. The district court
concluded the instruction was appropriate because it seemed to describe “implicit
bias.” On appeal, the City maintains the instruction materially misstated the law.
Our supreme court has recognized “two distinct theories of liability” for
discrimination in employment: disparate impact and disparate treatment. Pippen
v. State, 854 N.W.2d 1, 9 (Iowa 2014). Disparate impact cases involve “facially
neutral employment practices or fixed qualifications that in fact impact one group,
such as the disabled, more harshly than others.” Casey’s Gen. Stores, 661
N.W.2d at 519 n.2. In those cases—which are analyzed under a distinct legal
framework—liability is based on objective effects, “not the subjective motivation of
the employer.” Pippen, 854 N.W.2d at 9. By contrast, “[i]n a disparate treatment
case, the plaintiff bears the burden of showing he or she has been harmed by
discriminatory animus of the employer.” Id.
As Hunter states in the first line of his appellate brief, this is a “case of
disparate treatment.” So, contrary to his argument to the district court, intentional 26
animus is the defining element of his disability discrimination claim. Iowa C.R.
Comm’n v. Woodbury Cnty. Cmty. Action Agency, 304 N.W.2d 443, 451 (Iowa Ct.
App. 1981) (rejecting a plaintiff’s argument “that under Iowa law, proof of intent to
discriminate is not required” to prove a disparate-treatment claim). To return a
verdict in Hunter’s favor, the jury had to find his disability was a motivating factor
that “‘played a part’ in the [City’s] decision” to terminate his employment.
Haskenhoff, 897 N.W.2d at 582 (citation omitted). A decision is “a determination
arrived at after consideration.” Decision, Webster’s Third New International
Dictionary 585 (unabr. ed. 2002). Iowa law does not recognize a disparate-
treatment claim based on unconsidered, unintentional, or unconscious
discrimination.11 Hunter cites no authority to the contrary.12
11 We recognize that in Palmer College of Chiropractic v. Davenport Civil Rights
Commission, our supreme court stated that the American with Disabilities Act (ADA) and the Rehabilitation Act “specifically prohibit discrimination against those with disabilities based not just on ‘affirmative animus,’ but also any discrimination based on thoughtlessness, apathy, or stereotype.” 850 N.W.2d 326, 333 (Iowa 2014) (explaining our appellate courts often look to the ADA and the Rehabilitation Act for guidance in analyzing disability discrimination claims under the IRCA). But the court in Palmer was not concerned with whether the claimant was denied benefits because of his disability—that question was not disputed. Instead, the only question the court considered was whether the claimant was entitled to participate in an educational program with reasonable accommodation. Id. at 335. 12 Hunter’s appellate brief invokes several federal cases in support of his argument
that Instruction 26 was an accurate statement of the law. We have reviewed each of those cases and find none are informative. See Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d 1316, 1324 (8th Cir. 1994) (applying the motivating-factor standard and finding employer’s gender animus “actually motivated the challenged decision”); Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1064 (8th Cir. 1988) (quoting language from a now-overruled Seventh Circuit decision); Moe v. Grinnell Coll., 556 F. Supp. 3d 916, 932 (S.D. Iowa 2021) (describing “use of biased perspectives or stereotypes” as circumstantial evidence of discrimination in Title IX disciplinary proceedings); E.E.O.C. v. W&O, Inc., 213 F.3d 600, 611 (11th Cir. 2000) (finding a “lack of ill will” is not incompatible with the “malice” and “reckless indifference” standards for punitive damages under Title VII). 27
On two other occasions, our court has reviewed challenges to jury
instructions featuring near-identical language to Instruction 26. However, the
panels in those cases did not decide whether the disputed instruction accurately
described the law. See Vetter v. State, No. 16-0208, 2017 WL 2181191, at *10
(Iowa Ct. App. May 17, 2017) (“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.”); Butcher v. City of Mason City, No. 13–1622, 2014 WL 6681033,
at *5–6 (Iowa Ct. App. Nov. 26, 2014) (affirming rejection of proposed instruction
because, among other reasons, the applicable law was stated in other
instructions). We reach that question here. By permitting the jury to find the City
liable for a motive Chief Wingert did not “acknowledge or realize” he had,
Instruction 26 negated the intentionality requirement for a disparate-treatment
claim and undermined the well-established motivating-factor standard. It is a
misstatement of the law.
We acknowledge the district court’s error was due in part to its belief that
Instruction 26 concerned implicit bias. Over the last few decades, courts and
commentators have emphasized the importance of policing implicit bias in jury
trials. See, e.g., United States v. Young, 6 F.4th 804, 810–12 (8th Cir. 2021) (Kelly,
J., concurring); Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in
Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise
of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 165–70 (2010).
Our own supreme court has “strongly encourage[d] district courts to be proactive
about addressing implicit bias,” including through the use of cautionary
instructions. State v. Plain, 898 N.W.2d 801, 817 (Iowa 2017). But there’s a 28
difference between an instruction that “ask[s] the jurors to consciously reflect on
their decisionmaking process” and one that substantively alters the decision they
must make. Id. at 816. Instruction 26 did not seek to prevent biased deliberation;
it retooled the essential elements of Hunter’s disability discrimination claim.
Hunter contends that any error in Instruction 26 is harmless.13 It is true that
we “do not require perfection” when reviewing for instructional error. Rivera v.
Woodward Res. Ctr., 865 N.W.2d 887, 902 (Iowa 2015). Reversal is not warranted
“if a full and fair reading of all of the instructions leads to the inevitable conclusion
that the jury could not have misapprehended the issue.” Id. at 904 (cleaned up).
But the burden is on Hunter to show a lack of prejudice, id. at 903, and he cannot
do so on this record.
Instruction 26 improperly expanded the legal standard in the court’s
motivating-factor instruction, tipping the scales in Hunter’s favor on one of the most
fiercely contested issues in this case. Although we have determined that Hunter
presented sufficient circumstantial evidence to avoid a directed verdict on the
motive element of his discrimination claim, that evidence was far from conclusive.
The City introduced persuasive evidence that Hunter was fired for his misconduct
alone—not the least of which was a written recommendation for termination
predating his diagnosis. It is not difficult to imagine a juror who found no
discriminatory intent in Chief Wingert’s decision, but who nevertheless agreed to
13 Hunter also argues that the City has allowed the language of Instruction 26 to
be submitted in prior litigation involving some of the same attorneys. But he provides no authority to suggest the City’s acquiescence in other cases would preclude its objection here. We therefore decline to consider the issue further. See Iowa R. App. P. 6.903(2)(a)(8)(3). 29
return a verdict for Hunter based on speculation about the chief’s unconscious
motives.
Because Instruction 26 contained a material misstatement of the law, the
City is entitled to a new trial on Hunter’s disability discrimination claim. See
DeBoom, 772 N.W.2d at 14.
2. City’s Proposed Instructions
We briefly address the City’s other two claims of instructional error, as they
present issues likely to arise on retrial. See Hawkins, 929 N.W.2d at 268. First,
the City contends the district court erred by rejecting the City’s proposed “Rules of
Conduct” instruction, which provided:
When an employee violates an employer’s rules of conduct, and was guilty of egregious behavior, the employer is within its rights to terminate the employee for such behavior.
Second, the City argues the court erred by refusing to give a proposed instruction
on comparator evidence. That one stated in relevant part:
Plaintiff’s claim asserts that other employees, who are not disabled, are comparators to him and demonstrate the Defendant’s differential treatment of him. In considering whether a fellow employee is a comparator, you should consider the following: .... The individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.
A district court must issue a proposed jury instruction when it “correctly states the
law, has application to the case, and is not stated elsewhere in the instructions.”
DeBoom, 772 N.W.2d at 5. Here, we find no error in the court’s rejection of the
City’s proposals. 30
The notion that an employer is “within its rights to terminate [an] employee
for [egregious] behavior” was encompassed by other instructions provided to the
jury. Instruction 15, which the parties refer to as a “business judgment” instruction,
admonished the jury not to “return a verdict for [Hunter] just because you might
disagree with the [City’s] decision or believe it to be harsh or unreasonable.” And
Instruction 16, which addressed the same-decision defense, prohibited the jury
from awarding damages if it found the City “would have terminated [Hunter]
regardless of his disability.” When read alongside the elements of Hunter’s
discrimination claim, these instructions make clear that the City was entitled to
terminate Hunter for misconduct—so long as his disability played no part in the
decision.
As for the City’s comparator instruction, our supreme court recently
explained that a discrimination plaintiff may rely on comparator evidence to prove
pretext so long as “the other employees were similarly situated in all relevant
respects.” Feeback, 988 N.W.2d at 350 (cleaned up). In Feeback, the court noted
the Eighth Circuit’s rule that “individuals used for comparison must have
. . . engaged in the same conduct without any mitigating or distinguishing
circumstances.” Id. (quoting Gardner v. Wal-Mart Stores, Inc., 2 F.4th 745, 750
(8th Cir. 2021)). But it declined to adopt that stringent standard. Id. (clarifying that
“Feeback need not show the other employees committed ‘the exact same
offense’”). Instead, it found a plaintiff may point to “other employees whose
violations were of comparable seriousness.” Id. The City’s proposed instruction
overextended Feeback’s standard for comparators. 31
III. Conclusion
For the reasons discussed above, we reverse the denial of the City’s
motions for new trial and judgment notwithstanding the verdict. We remand to the
district court for retrial on Hunter’s disability discrimination claim and dismissal of
Hunter’s failure-to-accommodate claim. Given this disposition, we do not reach
the City’s evidentiary challenges. Finally, because Hunter is no longer the
prevailing party, we vacate the district court’s award of costs, expenses, and
attorney fees. See Knueven, 988 N.W.2d at 705.
REVERSED AND REMANDED.
Greer and Ahlers, JJ., concur; Sandy, J., dissents, in which Tabor, C.J.,
joins. 32
SANDY, Judge (dissenting).
I write to depart from my colleagues’ holding in several respects. I first
disagree with the majority’s holding that Hunter’s failure-to-accommodate claim
fails as a matter of law. The majority opinion chides Hunter for not informing the
police department or his superiors of his distress relating to Morgan’s suicide prior
to his June 2021 arrest, reasoning it deprived the City of any opportunity to
accommodate Hunter’s mental-health decline. But Hunter was not diagnosed with
PTSD until days before the City terminated his employment—well after the arrest.
And the majority further asserts that, at that point, “precisely what Hunter wanted—
time off, a reassignment, or something else—was immaterial. Any accommodation
he might have identified was in lieu of termination.”
The majority essentially holds that Hunter was completely barred from
making a reasonable request for accommodation once he received his PTSD
diagnosis. That view is at odds with Iowa law that “[w]hen an individual becomes
disabled, from whatever cause, during a term of employment, the employer shall
make every reasonable effort to continue the individual in the same position or to
retain and reassign the employee and to assist that individual’s rehabilitation.”
Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 17 (Iowa 2014) (quoting
Iowa Admin. Code r. 161—8.28). The majority provides no authority for the
proposition that the employee owes a duty to divulge medical symptoms to any
employer before they have ever received a disability diagnosis. And whether the
purported pre-diagnosis “symptoms” Hunter experienced should have alerted him
to the possibility that he was disabled to the point of requiring accommodation is a
fact question for the jury. There are many scenarios, as is the case here, where 33
an employee may be unaware of the existence of their disability until the fallout of
a disability-induced incident is occurring. The benefits of hindsight then allows the
terminating employer to point to past manifestations of the disability of which the
employee failed to apprise the employer. But whatever symptoms a disabled
employee exhibited in the past, that employee cannot be expected to request a
reasonable accommodation for a disability before he was ever diagnosed.
I would further argue that Hunter did request reasonable accommodation
and would not dismiss his request as one “that simply excuses [his] past
misconduct.” See McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir.
2012). Hunter testified that he requested time off:
CITY ATTORNEY: You told the chief you needed time and treatment to get back to working; is that correct? HUNTER: I believe so. CITY ATTORNEY: You told the chief that you needed time and treatment to get back to duty. How much time did you need? HUNTER: At the time I did not know. CITY ATTORNEY: How much time would you have needed to get back to work at that time? HUNTER: I believe with an accommodation of being somewhere else within the department, I don’t think I was asking for an indefinite period of time.
By informing the chief he “needed time and treatment,” Hunter met his
“not . . . onerous” burden “to propose an accommodation.”14 Slaughter v. Des
14 Conversely, the requests made in the cases cited by the City are easily distinguishable from Hunter’s request—many of those cases involve requests that the employer excuse the employee’s poor behavior with no accompanying request for an accommodation. See McElwee v. County of Orange, 700 F.3d at 641 (making no discernable accommodation request beyond the employee’s mother suggesting employee’s supervisor should speak with employee’s therapist and to “educate” employee’s stalking victims “that they [should] be more tolerant of his behavior”); DeWitt v. Sw Bell Tel. Co., 845 F.3d 1299, 1316 (10th Cir. 2017) (involving terminated call center employee that “did not request a reasonable accommodation to address concerns regarding the possibility of dropped calls; 34
Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793, 805 (Iowa 2019). And
Hunter’s failure to delineate a specific form of accommodation does not lessen the
City’s burden to provide him with reasonable accommodation. See Fjellestad v.
Pizza Hut of America, Inc., 188 F.3d 944, 953 (8th Cir. 1999) (“The interactive
process would have little meaning if it . . . allow[ed] employers, in the face of a
request for accommodation, simply to sit back passively, offer nothing, and then,
in post-termination litigation, try to knock down every specific accommodation as
too burdensome.” (citation omitted))
The majority cites Trahan v. Wayfair Maine, LLC. in support of its conclusion
that Hunter requested an excuse for his conduct rather than a reasonable
accommodation. 957 F.3d 54, 66 (1st Cir. 2020). The accommodation request at
issue in Trahan differed significantly from Hunter’s request. There, the terminated
employee had been diagnosed with PTSD at least seven years 15 before the
misconduct leading to her termination and long before she was hired by the
terminating employer. See Trahan, 957 F.3d at 57. The Trahan court found that
the employee’s decision to request accommodation “only after it became clear that
instead, she requested retroactive leniency for her misconduct”); Siefken v. Vill. of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995) (“When asked what accommodation Siefken would request, his counsel replied, ‘A second chance.’ But this is not an accommodation . . . .”); Burch v. Coca-Cola Co., 119 F.3d 305, 319 n.14 (5th Cir. 1997) (“Burch did not request an accommodation, he requested to return to his position as he left it . . . [and] sought no changes to his position and desired nothing more than the ability to resume his career where he had left it.”). 15 The other cases cited by the majority in support of its excuse-for-misconduct
analysis involve similar facts—a terminated employee who had been disabled since birth, see Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d 9, 16–17 (Iowa 2021), an employee who knew about his disability for months before his termination, see Fitzgerald v. Hy-Vee, Inc., No. 16-0462, 2017 WL 936121, at *3 (Iowa Ct. App. Mar. 8, 2017), and a man whose alleged disability had existed since birth, see McElwee, 700 F.3d at 637. 35
an adverse employment action was imminent” cut against her request for
accommodation. Id. at 65–66.
That reasoning does not apply to Hunter—he was not diagnosed with PTSD
until adverse employment action was imminent. So although Hunter clearly
expressed a desire to keep his job—that is an employee’s obvious intention for
any accommodation request—the timing of his request does not raise suspicion
as an excuse for misconduct in the same way that the request of an employee who
has known about their disability for years and failed to disclose their need for an
accommodation would. Hunter did not simply request a second chance or urge
the City to ignore his misconduct—he recognized and testified that his misconduct
warranted discipline and specified that he needed time and treatment. Unlike most
disability cases, Hunter’s situation—from the inciting incident to his disability
diagnosis, to his accommodation request, to his termination—unfolded very
quickly. This is why the “reasonableness of any proposed accommodation,
including its feasibility, must be assessed on a case-by-case basis.” Id. at 66. The
majority opinion fails to grapple with that nuance and instead applies a broad,
inflexible approach to Hunter’s unique circumstances.
Next, I would find no error in the district court’s decision to issue
instruction 26, as it does not misstate Iowa law and does not disturb previous
instructions on intent to discriminate. In my view, the majority has overstated the
power of that instruction.
The City argues that instruction 26’s clause permitting the jury to find
discriminatory intent “even if the managers do not acknowledge or realize their own
motives” allows for an employer to be held liable for disability discrimination even 36
without considering an individual’s disability. But we do not evaluate instructions
“piecemeal” or “in artificial isolation”—we view them “as a whole” when determining
if they are sufficient “to convey the applicable law.” Manno v. McIntosh, 519
N.W.2d 815, 823 (Iowa Ct. App. 1994). And the other instructions clearly
instructed the jury that they could only find the City engaged in disability
discrimination if “[Hunter]’s disability was a motivating factor” in the City’s
termination decision. The instructions further provided that his “disability was a
‘motivating factor’ in the [City]’s decision to terminate [Hunter’s] employment. . . .
Hunter’s disability must have been one of the reasons for the termination, but it
need not have been the only reason.” Thus, regardless of how the jury interpreted
the implicit bias aspect of Instruction 26, they were still expressly required to come
to a find that discrimination was one of the reasons for Hunter’s termination.
Additionally, Instruction 26 does not misstate the law. Our supreme court
has stated prohibited discrimination is “based not just on ‘affirmative animus,’ but
also any discrimination based on thoughtlessness, apathy, or stereotype.” Palmer
Coll. of Chiropractic v. Davenport C.R. Comm’n, 850 N.W.2d 326, 333 (Iowa 2014)
(citing Alexander v. Choate, 469 U.S. 287, 295–97 (1985), which noted that
discrimination against the handicapped is primarily the result of apathetic attitudes
rather than affirmative animus).
When certain discriminatory attitudes are held universally, it becomes less
likely that many discriminatory acts associated with those attitudes will consciously
be thought about. As an example, it is possible that discrimination against PTSD
is so widespread and socially accepted in the police community that many related
acts of discrimination against individuals with PTSD would be routine and ignored. 37
This does not make those discriminatory acts any less deliberate. Indeed, the
more pervasive a discriminatory attitude is, the less likely its purveyors are to
expressly consider their discriminatory acts in relation to those attitudes. Thus,
Instruction 26 becomes relevant in such cases—informing jurors that sometimes a
decision maker may be “unaware of bias in his or her thinking.” Accordingly, I
would conclude the district court committed no error in issuing the instruction.
I would hold that Instruction 26 was not a material misstatement of the law
and would uphold the district court’s issuance of the instruction. And because
Hunter requested an accommodation and the City proceeded to terminate him
rather than explore further options, I conclude that a rational trier of fact could have
found the City failed to accommodate Hunter’s disability, and the district court did
not err by denying the City’s motions on this issue. I thus respectfully dissent.
Related
Cite This Page — Counsel Stack
Matthew Lewis Hunter v. City of Des Moines, Iowa, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthew-lewis-hunter-v-city-of-des-moines-iowa-iowactapp-2025.