Hill v. Glenwood Resource Center

IN THE COURT OF APPEALS OF IOWA

No. 22-0653
Filed March 8, 2023

WYNEIL HILL,
Plaintiff-Appellee,

vs.

STATE OF IOWA, IOWA DEPARTMENT OF HUMAN SERVICES, and
GLENWOOD RESOURCE CENTER,
Defendants-Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Mills County, Richard H. Davidson,

Judge.

The defendants appeal an adverse jury verdict, raising alleged evidentiary

errors by the district court. AFFIRMED.

Brenna Bird, Attorney General, and Chandlor G. Collins (until withdrawal)

and Robert J. Thole, Assistant Attorneys General, for appellants.

Gregory G. Barntsen and Joseph D. Thornton of Smith, Peterson Law Firm,

LLP, Council Bluffs, for appellee.

Heard by Bower, C.J., and Badding and Buller, JJ.
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BADDING, Judge.

Glenwood Resource Center,1 a facility for Iowans with intellectual

disabilities and mental illnesses, appeals a jury verdict in favor of its former

employee, Wyneil Hill, on his claims of disability discrimination and constructive

discharge. Glenwood claims the district court abused its discretion in several

pretrial evidentiary rulings on the parties’ motions in limine. On the claims where

error was properly preserved for our review, we find no abuse of discretion and

affirm the judgment for Hill.

I. Background Facts

Hill is an army veteran who suffers from post-traumatic stress disorder as a

result of seeing his sergeant get shot in the stomach on a mission in the late 1980s.

Decades later, while employed at Glenwood as a resident treatment worker, Hill

was caring for a resident with a colostomy when his disorder was triggered. In an

email to his supervisor after the incident on August 3, 2019, Hill wrote that seeing

the resident’s intestines through his stoma caused him to have “flashbacks of

fellow soldiers being wounded in battle. Being close to those who have open organ

areas is bad for me. I had no clue that I would see clients like this or I could have

mentioned it specifically.”

Glenwood referred Hill to a therapist, and he remained off work through

August 13 when he met with his human resources manager, Natalie McEwen, and

a shift administrator to discuss his return to work. Hill went to the meeting in hopes

1 Because Glenwood is a facility operated by the Iowa Department of Human
Services, now known as the Iowa Department of Health and Human Services, the
plaintiff also named the State of Iowa and the department as defendants in his suit.
We will refer to all the defendants collectively as “Glenwood.”
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that he could go back to work the next day in an area where he would not have to

care for residents with colostomies. Despite this request, McEwen did not give Hill

a letter that she had drafted on August 12 temporarily reassigning him to a kitchen

staff position. She instead told him that Glenwood could not “100 percent

guarantee that he was never going to see the things that triggered him,” even

though there were only three to four residents—out of the 100 or so there at the

time—who had colostomies. Feeling that he had no other option, Hill resigned.

Although McEwen told him that he “could resign without prejudice,” she marked

his separation form as not eligible for rehire.

After leaving his job at Glenwood, Hill could not find other employment. He

sued Glenwood in November 2020 for disability discrimination and constructive

discharge, alleging he was not provided with reasonable accommodations for his

disability of post-traumatic stress disorder, which forced him to resign. The jury

returned a verdict for Hill on both claims, awarding him $142,500 in lost earnings

and $150,000 in non-economic damages.

Glenwood appeals, claiming the district court abused its discretion

in: (1) admitting the August 12, 2019 letter temporarily reassigning Hill to a kitchen

staff position; (2) prohibiting Glenwood from providing context for the letter and

explaining why it was not provided to Hill at the meeting on August 13; (3) excluding

evidence about Hill’s “criminal history, drug addiction, therapy records, and other

items included in his employment background checks”; and (4) admitting evidence

about the training, or lack thereof, that Hill received for his position at Glenwood.
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II. Error Preservation

Most of Glenwood’s brief focuses on the admission of the August 12, 2019

letter into evidence. It argues that Hill used this letter “to show an accommodated

position was available and used [Glenwood’s] failure to provide the letter to him at

the August 13th meeting as proof [Glenwood was] not interested in working with

him to find an accommodation.” See Goodpaster v. Schwan’s Home Serv., Inc.,

849 N.W.2d 1, 16–18 (Iowa 2014) (discussing the elements of a reasonable-

accommodation claim). The problem, according to Glenwood, is that Hill was

being reassigned to food and nutrition services because of an investigation into his

workplace behavior and Hill’s claim that he was subjected to racial slurs, not to

accommodate his post-traumatic stress disorder. As a result, Glenwood claims

the letter “was not relevant to any claim or defense in this trial.” Glenwood also

claims that once the letter was admitted, the district court should have allowed it

to explain “why the letter was drafted, i.e., the ongoing investigations.”

We cannot address these claims because Glenwood has not provided us

with “a sufficient record disclosing the error upon which it relies.”2 Estes v.

Progressive Classic Ins. Co., 809 N.W.2d 111, 115 (Iowa 2012). Glenwood’s

motion in limine did not seek to exclude the August 12, 2019 temporary

reassignment letter, though it did ask that Hill be prohibited from offering evidence

2 Nor did Glenwood provide us with statements in its appellate brief identifying how
and where error was preserved for any of the issues it raised on appeal. See Iowa
R. App. P. 6.903(2)(g)(1) (requiring the argument section of appellate briefs to
include a “statement addressing how the issue was preserved for appellate review,
with references to the places in the record where the issue was raised and
decided”). While a “party’s disregard of the rules may lead to summary disposition
of the appeal or waiver of an issue,” we decline Hill’s invitation to apply that result
here. See State v. Lange, 831 N.W.2d 844, 847 (Iowa Ct. App. 2013).
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about Glenwood’s investigation into his workplace behavior and coworkers’ racial

slurs. The district court granted that portion of Glenwood’s motion, ruling at a

pretrial conference: “I’d like to make this as clean as possible and keep it a

disability case and constructive discharge, period.” So the parties were instructed

that they could not offer evidence about “Hill’s behavior or coworkers’ behavior, as

well as the racial slur” allegations.

To comply with the court’s ruling, the parties had to remove and redact

some of their proposed exhibits before trial. At the end of the pretrial conference,

the court told counsel to contact him if they had any disagreements while

completing that task. They apparently did so, as the court noted on the record

before jury selection on the first day of trial:

The court held another pretrial conference, one much briefer and was
not on the record via telephone. And as part of that pretrial
conference over the telephone on March 3rd, the court was
appraised that the impasse involved Plaintiff’s Exhibit 17 and a
similar Exhibit FF of defendant’s [the August 12, 2019 temporary
reassignment letter]. The court ruled that this exhibit was admissible.

When Hill offered the letter at trial, Glenwood responded: “We would just

object in line with a prior ruling by the Court.” Trouble is, we don’t know what

objection Glenwood made to the letter at the unreported hearing or the basis for

the court’s ruling. See In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005) (“The court

may not speculate as to what took place or predicate error on such speculation.”).

Without that information, or any indication from the record that Glenwood asked to

provide context for the letter, we cannot address its first two claims on appeal. See

id. (“It is the appellant’s duty to provide a record on appeal affirmatively disclosing

the alleged error relied upon.”); see also Iowa R. App. P. 6.806(1) (“A statement of
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the proceedings may be prepared to create a record of a hearing or trial for which

a transcript is unavailable if a party deems it necessary to complete the record on

appeal.”); Jones v. Glenwood Golf Corp., 956 N.W.2d 138, 143 n.1 (Iowa 2021)

(“A record can be made of off-the-record colloquies.”).

III. Merits

We begin our analysis of Glenwood’s remaining two claims with some basic

principles of evidence: “Relevant evidence is admissible, unless provided

otherwise. However, irrelevant evidence is not admissible. Evidence is relevant if

it has any tendency to make a fact more or less probable than it would be without

the evidence; and the fact is of consequence in determining the action.”

Eisenhauer ex rel. T.D. v. Henry Cnty. Health Ctr., 935 N.W.2d 1, 17 (Iowa 2019)

(cleaned up) (quoting Iowa Rs. Evid. 5.401, .402) . But even relevant evidence “is

not admissible ‘if its probative value is substantially outweighed by the danger of

unfair prejudice.’” McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000)

(quoting Iowa R. Evid. 5.403). The determination of relevancy, and application of

the balancing test in Iowa Rule of Evidence 5.403, rests within the sound discretion

of the district court. Id.; see Harris v. Jones, 471 N.W.2d 818, 821 (Iowa 1991).

We will only find an abuse of that discretion if it was exercised “on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” Mohammed v.

Otoadese, 738 N.W.2d 628, 631–32 (Iowa 2007) (citation omitted).

A. Background-check evidence

Glenwood claims the district court abused its discretion in excluding

evidence that would have appeared on Hill’s background checks for employment,

including an “assault conviction from 2014,” delinquent child-support payments,
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“drug history,” “investigations into [Hill] abusing his stepdaughter,” “criminal

history,” and “therapy records,” plus Hill’s “background and record check

evaluation” at Glenwood.3 It argues “these items were relevant with respect to

[Hill’s] claim for damages, specifically because the types of jobs he was applying

for, those in criminal justice and as a contracted driver (Uber/Lyft), perform

background checks and would disqualify and did disqualify him for employment.”

With this evidence being excluded from trial, Glenwood argues Hill was able to

testify that the reason he remained unemployed was because Glenwood marked

his separation form as ineligible for rehire.

To put this claim into context, Hill testified at trial that after leaving his job at

Glenwood in August 2019, he had been unable to find other employment despite

“filing several other applications over the course of the last three years.” Because

Hill had a master’s degree in criminal justice, he was mainly looking for jobs in the

criminal-justice field. When he did not succeed with those jobs, he expanded his

search into sales and driving services like Lyft, Uber, and Door Dash. Hill testified

3 Although the parties held a lengthy hearing on their motions in limine, Glenwood
did not make any offer of proof on the evidence the court excluded or ask that its
proposed exhibits be made part of the record. See Lynch v. Moreno, No. 21-0815,
2022 WL 1486185, at *4 n.6 (Iowa Ct. App. May 11, 2022) (“[T]he record that
makes its way to us does not include proposed exhibits that are never marked as
admitted by the district court in the judicial interface.”). Glenwood has nevertheless
included some of its proposed exhibits in the appendix. As we cautioned in Lynch,
“[p]ractitioners should refrain from citing items that were not admitted and including
them in the appendix, as they were not made a part of the district court record and
are therefore not part of the record on appeal.” Id. Because Glenwood’s proposed
exhibits are not properly before us, we have not considered them in reviewing this
claim. Our review is instead confined to the descriptions of the excluded evidence
in the parties’ motions in limine and at the hearing on those motions, to the extent
those descriptions are sufficient to provide us with a “meaningful record for
appellate review.” Brooks v. Holtz, 661 N.W.2d 526, 529 (Iowa 2003) (citation
omitted).
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at his deposition that he thought his applications to those driving services were

denied because of a 2014 misdemeanor assault conviction. But at trial, he

speculated that his difficulty finding a job may have been because Glenwood listed

him as not eligible for rehire, though he also testified background checks were

performed.

The threshold problem Glenwood faces with the excluded evidence about

Hill’s “criminal history, drug addiction, therapy records, and other items included in

his employment background checks” is that we don’t know whether the employers

Hill filed applications with performed background checks. If checks were

performed, we also don’t know what information was disclosed, whether that

information included the items Glenwood wanted to get into at trial, or whether any

of it was the reason Hill was not hired. Cf. Parker v. Shatek, No. 15-1287, 2016

WL 4801605, at *1 (Iowa Ct. App. Sept. 14, 2016) (finding evidence of deceased

plaintiff’s criminal history was relevant on damages where an expert acknowledged

criminal history could affect employability).

The only information Glenwood offered on this point at the motion in limine

hearing was defense counsel’s assertion that Hill

testified in deposition that Lyft and Uber had not hired him based on
his background check. And so we believe that—we’re happy to
introduce evidence or attempt to introduce evidence from Lyft and
Uber explaining their background checks, but those at least publicly
mention assaultive or violent offenses will not allow you to be hired
by those places.
Additionally, those offenses, typically—especially with the one
within the last ten years—will not allow you to work in a criminal
justice capacity, even if it’s a misdemeanor for assault.

Later in the hearing, defense counsel continued: “[T]he jobs that Mr. Hill was

applying for are going to require background checks, drug testing and sometimes
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polygraphs, and I can pull that at least from the applications I looked up in research

to this case.” Counsel also told the court based on his “personal experience, not

in evidence” that an applicant’s child support delinquency would appear on a

background check for “probation offices, correctional offices.” (Emphasis added.)

At a subsequent hearing on the issue, the district court noted that it asked counsel

off the record whether Glenwood had “evidence that criminal justice jobs require

clean criminal history.” In response, Glenwood gave the court a one-page exhibit

the court described as “a screen shot of probably a text that Mr. Hill received” from

Lyft that his job application was denied “based in whole or in part on information in

your background check.”

But, as the district court noted, that exhibit “doesn’t say anything else, so I

don’t know if they have specific[s] as to what [was] in the background check.”

Glenwood did not offer the court any other evidence aside from the above to

support its assertions about the background checks. See State v. Embree, No. 14-

0709, 2015 WL 9450466, at *7 (Iowa Ct. App. Dec. 23, 2015) (finding defense

counsel’s statement that he had the victim’s iPod and an exhibit with

“approximately 50 statements from [the victim’s] phone” was not “sufficient to

create a meaningful record for appellate review” where the record did not show

what was contained on the iPod and the exhibit was not part of the record). So we

are left to speculate about the content of Glenwood’s proposed evidence on the

background checks and the witness or witnesses it would present to offer the

evidence. See id. Without that necessary link, the relevancy of these items of

evidence is marginal, especially considering that Hill was hired at Glenwood after

a background check. See Parker, 2016 WL 4801605, at *1 (“Relevance is
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contextual; it is determined by the issues raised and other evidence introduced

analyzed within the framework of the applicable law.”).

The probative value of the evidence is also limited. See State v.

Rodriguez, 636 N.W.2d 234, 240 (Iowa 2001) (“Probative value gauges the

strength and force of the evidence to make a consequential fact more or less

probable.” (cleaned up)). As the district court observed, most of the evidence that

Glenwood wanted to get into about Hill’s background was too remote in time to be

probative. See State v. Sharkey, 311 N.W.2d 68, 70 (Iowa 1981) (“Although

evidence may itself appear relevant, it may relate to a time so remote from the date

of the happening of an incident that it has little probative value.”). This includes a

1999 charge for second-degree assault, a child support delinquency in 2004, and

a 2000 charge for third-degree assault reduced to disturbing the peace,4 along with

statements in a psychosocial assessment that he struggled with a

methamphetamine addiction before 2011. The unfairly prejudicial nature of this

evidence was also high. See, e.g., Shawhan v. Polk Cnty., 420 N.W.2d 808, 810

(Iowa 1988) (noting the potential that evidence of past drug use “has for causing

unfair prejudice is high”).

As for the unspecified “therapy records” Glenwood contends should have

come into evidence, Hill’s motion in limine sought to keep out counseling progress

notes from 2014 that discussed some times when he struggled with anger issues.

Glenwood agreed at the hearing on the motions in limine that evidence from those

4 Hill disclosed these offenses to Glenwood in a record check evaluation that
Glenwood listed as a proposed exhibit for trial. But, as discussed earlier, because
that exhibit was not made part of the record, we are limited to counsel’s
descriptions of the offenses in Hill’s motion in limine and the hearing on the motion.
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progress notes would only be relevant if the court denied its request to exclude

evidence about its investigation into Hill’s workplace behavior and his coworkers’

racial slurs. Because that evidence did not come in, and Glenwood made no

showing as to how the progress notes would explain why Hill could not find a job

after leaving Glenwood, we find no abuse of discretion in the court’s ruling

excluding those records.

We also find no abuse of discretion in its exclusion of evidence about Hill’s

alleged abuse of his stepdaughter at some unknown time, which the parties told

the court was “unfounded.” Glenwood intended to use this evidence to explain

why Hill could not be placed in one of the all-female houses at the facility. But, as

the district court reasoned, the substantial unfairly prejudicial nature of this

evidence outweighed any limited probative value considering there was no criminal

conviction, it “involves at best [an] abuse investigation [that] was unfounded,” and

is “based on hearsay.” In any event, Hill’s supervisor testified at trial that his

request to be transferred to the all-female house was denied because of her

“concerns about his interactions and his judgment with females.” And Hill

presented evidence there were many other houses at Glenwood with vacancies

for resident treatment workers.

For these reasons, we conclude the district court did not abuse its discretion

in excluding any of the foregoing evidence.

B. Training evidence

Glenwood next claims the district court abused its discretion in allowing

testimony that Hill had not been trained to deal with residents who had

colostomies. Glenwood argues this evidence was irrelevant and unfairly
12

prejudicial because Hill was not seeking recovery for his lack of training or the

emotional distress he experienced as a result of seeing the resident’s stoma. Cf.

Couch v. Iowa Dep’t of Hum. Servs., No. 15-0432, 2016 WL 5930340, at * 5 (Iowa

Ct. App. Oct. 12, 2016) (discussing a failure-to-train claim in a discrimination case).

But it was relevant to Hill’s disability discrimination claim for Glenwood’s failure to

provide a reasonable accommodation.

The jury was instructed that in order to be successful on that claim, one of

the elements Hill had to prove was that he “was qualified to perform the essential

functions of his job position with or without accommodation.” See Rumsey v.

Woodgrain Millwork, Inc., 962 N.W.2d 9, 22 (Iowa 2021). To show he was a

qualified individual, another instruction required Hill to prove that he “possess[ed]

the requisite skill, education, experience, and training for the position he was hired

to perform.” See id. We agree with the district court the evidence was relevant on

that element of Hill’s claim—“to determine what he could tolerate as far as his

qualifications for the job.”

Testimony about Hill’s lack of training on colostomy bags was also relevant

to show this was not an essential function of his job. On that issue, the jury was

instructed that one of the factors it could consider was “the amount of time spent

on the job performing the function in question.” See Palmer Coll. of Chiropractic

v. Davenport Civ. Rts. Comm’n, 850 N.W.2d 326, 343 (Iowa 2014). As the district

court found, the fact that Hill “worked with the resource center for some four, maybe

more months before he ran into this issue” was relevant to show that working with

residents who had colostomies was not an essential function of his job.
13

As far as the rule 5.403 balancing test, we recognize that all evidence will

result in some prejudice. Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 158

(Iowa 2004). We accordingly focus on whether that prejudice is unfair. Id. “Unfair

prejudice arises when the evidence prompts the jury to make a decision on an

improper basis, often an emotional one.” Id. On this point, Glenwood argues the

evidence “created animosity towards” it and “confused [the jury] as to what

evidence they should consider.” We disagree. While Hill’s lack of training was

discussed throughout the trial, it was used by him for the purposes identified

above, not to try to get the jury to “punish [Glenwood] for unrelated events.” On

balance, we find the district court fairly weighed the probative value of the evidence

against the probable dangers of admitting it. See Midwest Home Distrib., Inc. v.

Domco Indus. Ltd., 585 N.W.2d 735, 745 (Iowa 1998) (“Because [rule 5.403]

allows the district court to exclude relevant testimony, the court should apply the

rule sparingly.”).

Considering the “latitude afforded the district court in matters of evidence,”

State v. Thompson, 954 N.W.2d 402, 408 (Iowa 2021), we conclude the court did

not abuse its discretion in allowing testimony about Hill’s lack of training.

IV. Conclusion

We find Glenwood failed to preserve error on two of its evidentiary claims.

On the claims where error was preserved, we find no abuse of discretion in the

district court’s evidentiary rulings and affirm the judgment for Hill.

AFFIRMED.