author: JOHNS, Circuit Judge.

text:
    2003 SD 42
    Cynthia A. BARNES, Plaintiff and Appellant, v. Dennis E. MATZNER, Defendant and Appellee.
    No. 22387.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2003.
    Decided April 16, 2003.

      Stephanie R. Amiotte of Moore, Rasmussen, Fading & Kunstle, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Steve Miller, Sioux Falls, South Dakota, Attorney for defendant and appellee.
   JOHNS, Circuit Judge.

[¶ 1.] This appeal arises from the trial court’s order denying a motion to retroactively modify a foreign child support order which was previously registered and confirmed in South Dakota. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Cynthia A. Barnes (Barnes) and Dennis E. Matzner (Matzner) were divorced in the state of Ohio in 1987. Thereafter, they became involved in extensive post-divorce litigation, mainly concerning child support and visitation for their daughter Anna. In May 1994 they entered into an agreement whereby Barnes agreed to forego child support and in return Matzner agreed to only have contact with Anna by mail. It was also stipulated that if Matzner violated the agreement then his child support, as established in a 1989 order, would be reinstated retroactively to the date of the agreement. Subsequently, an Ohio court indefinitely suspended his support obligation effective March 1994. However, that 1994 court order did not include the retroactive reinstatement provision.

[¶ 3.] The parties operated pursuant to their agreement and the 1994 order until 1999. At that time, Matzner was a resident of Sioux Falls, South Dakota. Barnes and Anna were residents of the state of Kentucky. In January 1999 Barnes filed the 1994 and 1989 Ohio court orders in South Dakota for registration under our Uniform Interstate Family Support Act (SDCL ch 25-9B). Barnes also sought arrears from the date she first excused Matzner from paying support in the 1994 agreement.

[¶ 4.] Matzner was informed by a notice of registration of order that Barnes was filing both Ohio orders and was also alleging arrearages were owed under the 1989 order. Matzner did not contest registration of the orders but he did request a hearing contesting the claim for arrearag-es. A copy of the request for hearing was sent to Barnes. Barnes was also sent a copy of the attorney general’s response to the request for hearing and a copy of the notice of change of hearing which set a hearing before the Honorable Gene Paul Kean on February 16, 1999. After the hearing the trial court, in an order dated March 1, 1999, confirmed the 1994 Ohio order and provided that “there be no money judgment issued in connection with such and that modification may be pursued if so desired.”

[¶ 5.] Barnes did not appeal or seek other relief from this latest order. Rather, one month later, Barnes filed a petition for modification wherein she requested both a prospective and retrospective modification of the 1994 Ohio order. The matter was referred to a referee and a hearing was held on May 17, 1999. Barnes appeared by telephone along with her Kentucky attorney and Matzner appeared personally with his attorney. At that hearing, Barnes alleged that Matzner breached the 1994 order by directly contacting Anna.

[¶ 6.] The referee recommended the matter be transferred to circuit court “for determination of the factual questions of whether support can be ordered based upon Father’s alleged violation of the terms of the Ohio Order, and change in circumstances.” A transfer to circuit court was ordered by the Honorable William J. Srstka on June 28, 1999; however, before the hearing and by stipulation of the parties the question of arrearages was dismissed without prejudice. An order was subsequently entered establishing a current support obligation effective April 1, 1999.

[¶ 7.] On November 6, 2001, Barnes again asserted her claim for arrearages based on the 1989 order when she filed a motion with the South Dakota courts to establish the child support arrearages. In that motion, Barnes argued that the 1994 order, relieving Matzner of his obligation to support Anna, is unenforceable in both South Dakota and Ohio because it is against public policy. As a result, Barnes argued that the 1989 order establishing child support in the amount of $390 per month was resurrected, and arrearages were owed for the time between March 1994 and April 1999.

[¶ 8.] On January 28, 2002, a hearing was held before the Honorable Stuart L. Tiede concerning Barnes’ motion. At that hearing, Judge Tiede ruled from the bench that no arrearages were owed. As to the effect of Judge Kean’s order, Judge Tiede found that Judge Kean “was recognizing the status of the record as it existed at that time. There is no outstanding support and, therefore, there are no arrearag-es.” Judge Tiede determined that the 1994 order was valid and enforceable under both the laws of Ohio and South Dakota and that he was bound to follow it. Judge Tiede also found that as a result of the proceedings before Judge Kean and the resulting March 1999 order, Barnes was barred by the doctrine of res judicata from again seeking a retroactive modification of the 1994 order (which would be in effect a setting aside or nullification of the order). Barnes appeals raising three issues:

Whether Barnes is barred by the doctrine of res judicata from prosecuting a claim for arrearages.
Whether the 1994 Ohio order relieving Matzner from paying child support is void as against public policy.
Whether Matzner owes child support from and after the date he made direct communication with his daughter Anna in violation of his May 1994 agreement with Barnes if the 1994 order is found to be valid.

[¶ 9.] Although failing to file a notice of review and failing to raise the issue before the trial court, Matzner now raises the following issue challenging jurisdiction:

Whether the trial court had subject matter jurisdiction to hear Barnes’ claim for arrears, as the same constitutes a retroactive modification of the 1994 order.

ANALYSIS

A. SUBJECT MATTER JURISDICTION

[¶ 10.] We begin by addressing Matzner’s challenge to subject matter jurisdiction. Subject matter jurisdiction is the power of a court to act such that without subject matter jurisdiction any resulting judgment or order is void. In re Application of Koch Exploration Co., 387 N.W.2d 530, 536 (S.D.1986). It is “conferred solely by constitutional or statutory provisions ... [and] can neither be conferred on a court, nor denied to a court by the acts of the parties or the procedures they employ.” Freeman v. Sadlier, 1998 SD 114, ¶10, 586 N.W.2d 171, 173. Because jurisdictional questions have no time limitation, they can be raised at any time by either the parties or the court sua sponte. Id.

[¶ 11.] Matzner contends that the trial court lacked subject matter jurisdiction to retroactively modify the 1994 order. As support for this proposition he cites South Dakota’s Uniform Interstate Family Support Act (UFIFSA), SDCL ch 25-9B, and the Federal Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 USC § 1738B. Under both acts the question of whether the courts of this state have jurisdiction to modify a child support order of another state is dependent on the residency of the parties and/or the execution of a written consent in the issuing forum permitting modification in a tribunal of this state. South Dakota’s UFIFSA in SDCL 25-9B-611 provides:

(a) After a child support order issued in another state has been registered in . this state, the responding tribunal of this state may modify that order only if § 25-9B-613 does not apply and, after notice and hearing, it finds that:
(1) The following requirements are met:
(i) The child, the individual obligee, and the obligor do not reside in the issuing state;
(ii) A petitioner who is a nonresident of this state seeks modification; and
(iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or
(2) An individual party or the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed a written consent in the issuing tribunal providing that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction which has not enacted this chapter, the written consent of the individual party residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order.
(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
(c) A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child support orders for the same obligor and child, the order that is controlling and must be recognized under the provisions of § 25-9B-207 establishes the nonmodifiable aspects of the support order.
(d) On the issuance of an order modifying a child support order issued in another state, a tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.

SDCL 25-9B-611.

[¶ 12.] The federal authority, FFCCSOA 28 UCC § 1738B, provides in relevant part:

(a) General rule. The appropriate authorities of each State
(1) shall enforce according to its terms a child support order made consistently with this section by a court of another State; and
(2) shall not seek or make a modification of such an order except in accordance with subsections (e), (f), and (i).
(e) Authority to modify orders. A court of a State may modify a child support order issued by a court of another State if—
(1) the court has jurisdiction to make such child support order pursuant to subsection (i); and
(2) (A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant; or
(B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order.
(i) Registration for modification. If there is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification.

28 USC § 1738B.

[¶ 13.] Here, South Dakota had subject matter jurisdiction at the time of the registration of the Ohio orders to hear a request for a modification irrespective of whether the requested modification was retrospective or prospective. At the time of the registration of the 1994 order in South Dakota, Barnes and Anna were residents of Kentucky and Matzner was a resident of South Dakota. Neither the contestants nor child were residents of the state of Ohio and thus, under the terms of 28 USC § 1738B(i), the 1994 order was required to be registered in South Dakota since this state had jurisdiction over the nonmovant, Matzner, based on his residency. Furthermore, the requirements of 28 USC § 1738B(e)(l) and (2)(A) were met since South Dakota had jurisdiction to make a modified order pursuant to the provisions of subsection (i) and Ohio no longer had continuing, exclusive jurisdiction because it was no longer the child’s residence and it was not the residence of any of the contestants.

[¶ 14.] South Dakota is specifically vested with subject matter jurisdiction for a modification under the provisions of SDCL 25-9B-611(a)(l) as the requirements of the statute are met and SDCL 25-9B-613(a) does not apply. None of the parties, including Anna, resided in Ohio at the time of registration; Barnes is the person seeking modification and she does not reside in this state; and, Matzner was subject to the personal jurisdiction of the courts of this state.

[¶ 15.] We hold that South Dakota had subject matter jurisdiction to hear the request for modification at the time of registration. Furthermore, there is nothing in the record establishing that South Dakota was ever divested of its jurisdiction. In fact, pursuant to the provisions of SDCL 25-9B-611(d), South Dakota became the tribunal of continuing, exclusive jurisdiction once Judge Srstka entered the 1999 order prospectively modifying the 1994 order.

B. RES JUDICATA.

[¶ 16.] Barnes claims that the trial court erred when it concluded her claim for arrearages was barred by the doctrine of res judicata.

The doctrine of res judicata serves as claim preclusion to prevent relitigation of an issue actually litigated or which could have been properly raised and determined in a prior action.
For purposes of res judicata, a cause of action is comprised of the facts which give rise to, or establish, the right a party seeks to enforce.... [T]he test is a query into whether the wrong sought to be redressed is the same in both actions. Res judicata, which embodies the concepts of merger and bar, is therefore broader than the issue preclusion of collateral estoppel.
Res judicata bars an attempt to reliti-gate a prior determined cause of action by the parties, or one of the parties in privity, to a party in the earlier suit. Res judicata is premised upon two maxims: A person should not be twice vexed for the same cause and public policy is best served when litigation has a repose. These maxims are served when the parties have had a fair opportunity to place their claims in the prior litigation.

Black Hills Jewelry Mfg. v. Felco Jewel Ind., 336 N.W.2d 153, 157 (S.D.1983) (emphasis in original) (citations omitted).

[¶ 17.] The only issue here is whether Judge Kean’s March 1, 1999, order reserved the issues of retroactive modification and prospective modification of child support. If that order did not reserve Barnes’ right to contest the validity of the 1994 order until a later date, then Barnes was barred by the doctrine of res judicata from later contesting the same by means of a motion for arrearage/retroac-tive modification.

[¶ 18.] In determining this issue we consider Judge Kean’s order in both the legal and factual contexts in which it was entered. When Barnes first claimed arrearages she was contesting the validity of the 1994 order. SDCL 25-9B-607 addresses the burden a party is faced with if they contest the validity or enforcement of a registered order. Failure to meet that burden requires a court to “confirm” the order. That statute provides:

(a)A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
(1)The issuing tribunal lacked personal jurisdiction over the contesting party;
(2) The order was obtained by fraud;
(3) The order has been vacated, suspended, or modified by a later order;
(4) The issuing tribunal has stayed the order pending appeal;
(5) There is a defense under the law of this state to the remedy sought;
(6) Full or partial payment has been made; or
(7) The statute of limitation under § 25-9B-604 precludes enforcement of some or all of the arrearages.
(b) If a party presents evidence establishing a full or partial defense under subsection (a), a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered order may be enforced by all remedies available under the law of this state.
(c) If the contesting party does not establish a defense under subsection (a) to the validity or enforcement of the order, the registering tribunal shall issue an order confirming the order.

[¶ 19.] If a court confirms the order after hearing, pursuant to SDCL 25-9B-607, further contest of the order is precluded. In delineating this preclusive effect, SDCL 25-9B-608 provides:

Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

[¶ 20.] Judge Kean’s March 1, 1999 order reads in pertinent part:

Ordered that the Divorce Decree from the State of Ohio be and hereby is ordered registered [sic] but that there be no money judgment issued in connection with such and that modification may be pursued if so desired.

Unfortunately, we do not have a transcript of the hearing before Judge Kean from which the order resulted. It is clear, however, that Barnes’ claim for arrearages was pending at the time of the hearing and the order indicated that no money judgment was to be issued. Based on these circumstances the only reasonable interpretation of this order is that it only permitted future modification of the 1994 order. It would require a strained interpretation of Judge Kean’s order to conclude that it reserved the right to contest the 1994 order. This would be unwarranted in light of the procedural posture of this case and the language of SDCL 25-9B-607 and 608, which required Barnes to contest the 1994 order at the time of the confirmation hearing and precluded further contest once the order was confirmed.

[¶ 21.] Since we affirm the trial court on this issue, we do not address Barnes’ other issues.

C. APPELLATE ATTORNEY FEES

[¶22.] Both parties seek appellate attorney fees pursuant to the provisions of SDCL 15-17-38 and 15-26A-87.3. Matzner also seeks fees pursuant to SDCL 15-17-51. SDCL 15-26A-87.3 sets forth the substantive content and procedural requirements of a motion for appellate attorney fees when such are allowable. SDCL 15-17-38 precludes the taxation of attorney fees as a disbursement except in those cases where it is allowed by a specific statute. It also provides that a “court, if appropriate, in the interests of justice, may award payment of attorney’s fees in all cases of divorce, annulment of marriage, determination of paternity, separate maintenance, support or alimony.” SDCL 15-17-38.

[¶ 23.] SDCL 15-17-51 allows for disbursements in certain circumstances when an action is dismissed. That statute provides:

If a civil action or special proceeding is dismissed and if the court determines that it was frivolous or brought for a malicious purposes, the court shall order the party whose cause of action or defense was dismissed to pay part or all expenses incurred by the person defending the matter, including reasonable attorneys’ fees.

On its face SDCL 15-17-51 appears to only apply to proceedings where an action is dismissed by a trial court or by this Court when it is exercising its original jurisdiction. However, based on our prior precedent holding that in domestic relations cases “[a]ttorney fees on appeal may be granted, ‘regardless of the success of the party requesting them, unless that party has proceeded in bad faith, or has brought a frivolous or unjustified action’ ” we do not address this issue. Jacobson v. Jacobson, 2000 SD 60,¶30, 611 N.W.2d 210, 218 (citing Peterson v. Peterson, 434 N.W.2d 732, 738 (S.D.1989)).

[¶ 24.] We have also recognized in domestic relation cases that “[i]n determining whether fees for the appeal are proper, we must ‘consider the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.’ ” Id. From the record, we know that as of May 2002, Barnes’ annual income was $61,183 and Matzner’s annual income was $57,758. We also know that Barnes had over $9,800 in annual income from interest and rental property. Thus, we can conclude that the parties have the ability to pay at least some of the other’s attorney fees. The second step of our analysis is to examine the fee requests from the perspective of whether the party’s appellate arguments carried any merit. Considering this factor we cannot justify an award to Barnes. Matzner asks for $5,141 which appears to be appropriate for the amount and quality of the work his attorney performed in defending this appeal. Yet, considering that his subject matter jurisdiction argument was without merit, we award him $2,500.

CONCLUSION

[¶ 25.] We hold that the trial court had subject matter jurisdiction; the trial court order is affirmed; and Matzner is awarded attorney fees in the amount of $2,500.

[¶ 26.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 27.] JOHNS, Circuit Judge, for SABERS, Justice, disqualified.

      . The term "register" is defined in SDCL 25-9B — 101(14) as meaning "to record a support order or judgment determining parentage in the appropriate location for the recording or filing of foreign judgments generally or foreign support orders specifically.”

      . Subject matter jurisdiction is “[¡jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things.” Black’s Law Dictionary, 857, 7th ed 1999.

      . The term "modification” is not defined in SDCL ch 25-9B but it is defined in 28 USC § 1738(B) as "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order.”

      . SDCL 25-9B-613 (a) provides: "If all of the individual parties reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and modify the issuing state's child support order in a proceeding to register that order.” This statute does not apply in this case because Barnes did not reside in this state at the time of registration.

      . As noted by Matzner’s appellate counsel, it may seem odd that Barnes would file the 1994 order for registration and then would be required to contest it. However, she was required to register it since it was a modification of the earlier 1989 order she sought to enforce. SDCL 25-9B-602. If she had not registered it, Matzner had the right to file it for registration at the time of the hearing since it provided a statutory defense to the arrearage claim. SDCL 25-9B-607(a)(3).


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    CASEY’S GENERAL STORES, INC., Appellee, v. Steven H. BLACKFORD, Appellant, IOWA CIVIL RIGHTS COMMISSION, Respondent.
    No. 01-1270.
    Supreme Court of Iowa.
    April 2, 2003.
    Rehearing Denied May 23, 2003.

      David H. Goldman of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellant.
    Edward W. Remsburg, Elizabeth Gregg Kennedy, and Nathan J. Overberg of Ah-lers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellee.
   CADY, Justice.

In this appeal, we must decide if the district court erred in dismissing a disability discrimination claim brought under the Iowa Civil Rights Act by an employee against his employer for failing to reassign him to a non-driving position or grant him a leave of absence after his driver’s license was suspended and he was unable to perform the essential functions of his job as a truck driver. The Civil Rights Commission awarded the employee damages, and the district court dismissed the claim on judicial review. On our review, we affirm the district court.

I. Background Facts and Proceedings.

Steve Blackford was employed by Casey’s General Stores, Inc. (Casey’s), as a grocery truck driver. He began working for Casey’s in 1983. He was terminated from his employment on October 3, 1990, the same day his driver’s license was revoked by the Iowa Department of Transportation following an off-duty arrest for operating while intoxicated (OWI) in July 1990. A valid commercial driver’s license was a requirement for his employment as a truck driver for Casey’s.

On January 14, 1991, Blackford filed a complaint with the Iowa Civil Rights Commission (Commission) alleging Casey’s discriminated against him by terminating his employment based on a disability. Black-ford claimed he was an alcoholic and was terminated from his employment because of his disability.

On February 9,1993, following a lengthy investigation, the Commission determined there was probable cause to support the complaint, and the matter eventually proceeded to a hearing. Following numerous administrative hearings over a period of several years, the Commission determined that “Casey’s discriminated against Black-ford on the basis of his disability (alcoholism) by failing to accommodate his disability and discharging him from employment in violation of the Iowa Civil Rights Act.” It awarded Blackford $143,905 in economic losses and $20,000 in emotional distress damages as well as interest, attorney fees, and contested case costs.

The Commission found ample evidence that Casey’s knew of Blackford’s long history of alcohol abuse outside the hours of his employment. It also found Casey’s had a company policy to deal with employees charged with OWI, which included intervention and possible substance abuse assessment and treatment. Casey’s did not follow this policy by investigating Blackford after it learned of his arrest for OWI.

The Commission also found Casey’s maintained a transfer policy, which permitted employees to transfer to other positions within their department or to other departments. There was evidence that Blackford was not disqualified from this policy because of his arrest and conviction for OWI. Casey’s also had a temporary leave of absence policy that possibly could have been used to assist in effectuating a transfer in the event there was no position immediately available for Blackford to fill. Casey’s knew Blackford had been arrested for OWI and that his driver’s license would be suspended if convicted of the criminal offense.

Although Blackford initially asked Casey’s to assist him in applying for a temporary restricted license to enable him to continue to drive a truck once his regular driver’s license was suspended, he later inquired into a transfer to a non-driving position. Blackford first considered the possibility of a transfer in August 1990 based on a suggestion by the supervisor of the vehicle maintenance department. The supervisor thought Blackford might be able to switch jobs with an employee in the vehicle maintenance department. A job in the vehicle maintenance department did not require a commercial driver’s license. Blackford talked to his supervisor about the job switch and was told a decision would need to be made by the company vice president in charge of transportation. The transportation division of the company included gasoline drivers, grocery drivers, and the vehicle maintenance department.

The vice president in charge of transportation subsequently telephoned the vehicle maintenance supervisor to inquire if the maintenance department had any open positions. He was told there were no open positions, but the supervisor mentioned an opening could possibly be created through a three-way job switch. However, no action was taken by Casey’s to accomplish the switch.

A few days before Blackford was terminated, he spoke directly to the vice president about creating an opening in the vehicle maintenance department through the three-way job switch, and also mentioned the specific employees who would be involved. He also told the vice president that there must be some available job within the company he could perform. Blackford was terminated a few days later.

The vice president in charge of transportation did not consider the possibility of transferring Blackford outside the transportation department. Furthermore, neither he nor Blackford’s supervisor checked with the company vice president in charge of human resources to see if there were any open non-driving positions in other departments within the company that Blackford would have been qualified to perform. There was evidence suggesting that, in light of the large number of employees that work for Casey’s, such a position would have been available if the search would have started when Blackford first began to inquire about a transfer. Blackford did not mention the possibility of taking a leave of absence prior to his termination.

The Commission found Blackford established a prima facie case of discrimination, and that the reasons Casey’s offered to explain its failure to accommodate Black-ford by transferring him to a non-driving position or placing him on a leave of absence were pretextual. Casey’s basically claimed it did not transfer Blackford because there were no open positions once Blackford gave up his efforts to keep his driving job through a temporary driver’s license and started to look into a transfer. It also claimed Blackford never made a specific request for a transfer, or requested to be placed on a leave of absence.

On judicial review, the district court held that the uncontradicted evidence before the Commission showed Blackford was fired by Casey’s because he lost his driver’s license for a job that required him to have a driver’s license, and not because of his status as an alcoholic. It found this meant Blackford could not establish he suffered any adverse employment decision because of his disability. Additionally, the district court found Blackford failed to establish he was qualified to work because Casey’s had no duty to transfer Blackford to a non-driving position. Furthermore, the district court found Casey’s did not discriminate against Blackford by preventing or interfering with any of his efforts to seek a transfer. Accordingly, the district court reversed the Commission decision and dismissed the complaint filed by Blackford.

On appeal, Blackford argues the district court erred by relying upon Casey’s misconduct defense to reverse a decision of the Commission. Blackford asserts this defense is inapplicable to this case because he does not claim he was qualified to continue his employment as a truck driver, and because he was not claiming that Casey’s should have accommodated him in his driving job by helping him obtain a temporary license so that he could continue to drive. Instead, Blackford asserts the district court erred in failing to recognize his separate claim of discrimination when Casey’s failed to transfer him pursuant to the company transfer policy to another job within the company that he would have been qualified to perform. Blackford argues there is substantial evidence in the record to support the finding made by the Commission that Blackford established a prima facie case of discrimination based on Casey’s failure to transfer him to a non-driving job because he was an alcoholic, and that the reasons asserted by Casey’s for failing to transfer were pretextual.

II. Standard of Review.

Our review is prescripted by the Iowa Administrative Procedure Act. Iowa Code § 17A.19(8) (2001). Generally, our review is akin to review for errors at law.

III. Disability Discrimination — Statutory Framework.

The Iowa Civil Rights Act prohibits an employer from discriminating against a qualified person with a disability because of the person’s disability. Iowa Code § 216.6(1); see also Boelman v. Manson State Bank, 522 N.W.2d 73, 79 (Iowa 1994). The statute, however, only pronounces a general proscription against discrimination and we have looked to the corresponding federal statutes to help establish the framework to analyze claims and otherwise apply our statute. See Schlitzer v. Univ. of Iowa Hosps. & Clinics, 641 N.W.2d 525, 529 (Iowa 2002) (federal Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-213, is instructive in applying our statute); Boelman, 522 N.W.2d at 79 (Federal Rehabilitation Act, 29 U.S.C. § 794, used as a guide in applying our statute). Like the ADA, to recover under the Iowa statute, a claimant must'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. Schlitzer, 641 N.W.2d at 530.

Generally, if a claimant establishes these three elements, the burden shifts to the employer to show a legitimate nondiscriminatory reason for the adverse employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 98 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 678 (1973); Boelman, 522 N.W.2d at 79-80. Once an employer proffers a legitimate nondiscriminatory reason, the burden shifts back to the claimant to show the reason proffered by the employer is pretextual.

A. Disabled Person.

The civil rights statute broadly defines a disability as a “physical or mental condition of a person which constitutes a substantial disability.” Iowa Code § 216.2(5). We have previously recognized alcoholism to be a disability. See Consol. Freightways, Inc. v. Cedar Rapids Civil Rights Comm’n, 366 N.W.2d 522, 528 (Iowa 1985). Thus, like its federal ADA counterpart, alcoholism is covered under the statute as a disability. See Duda v. Bd. of Educ., 133 F.3d 1054, 1059 n. 10 (7th Cir.1998) (citing cases finding alcoholism is covered under the ADA); Evans v. Fed. Express Corp., 133 F.3d 137, 139 (1st Cir.1998) (same).

B. Qualified Person.

The second element of a discrimination claim under the statute requires claimants to establish they are qualified persons for the job by showing they can ‘“perform the essential functions of [the position] with or without accommodation.’ ” Schlitzer, 641 N.W.2d at 530 (citation omitted); see Miller v. Sioux Gateway Fire Dep’t, 497 N.W.2d 838, 841 (Iowa 1993) (a qualified person is one who can perform the essential functions of a job “in spite of’ a disability). In Schlitzer, we recognized this showing requires the court to consider whether the claimant has ‘ “ ‘the requisite skill, experience, education and other job-related requirements of the employment position that such individual holds or desires.’ ” ’ Schlitzer, 641 N.W.2d at 531 (citation omitted). If the claimant proves he or she “can perform the essential functions of the job,” the qualified person element is met. Boelman, 522 N.W.2d at 80. If not, then an additional inquiry must be made to determine if a “reasonable accommodation by the employer would enable [the claimant] to perform the essential functions.” Id.; see Schlitzer, 641 N.W.2d at 530 (applying the shifting burden analysis). An employer, under Iowa law, “must make ‘a reasonable effort’ to accommodate an employee’s disability.” Courtney v. Am. Nat’l Can Co., 537 N.W.2d 681, 687 (Iowa 1995) (citation omitted).

We further emphasized in Schlitzer that the duty to reasonably accommodate a claimant applies not only to an existing job, but also includes a job the claimant desires. Schlitzer, 641 N.W.2d at 530-81; see 42 U.S.C. § 12111(9) (2000) (reasonable accommodation includes “reassignment to a vacant position”); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161-63 (10th Cir.1999) (“qualified individual” under the ADA includes disabled employees who can perform a desired reassignment job, with or without an accommodation, though unable to perform their existing job); Aka v. Washington Hasp. Ctr., 156 F.3d 1284, 1300-01 (D.C.Cir.1998). Thus, like the federal ADA counterpart, our statute should not only protect a disabled person who can perform the essential functions of a position the person holds, with or without an accommodation, but also protect a disabled person who can perform the essential functions of a desired job, with or without an accommodation. Schlitzer, 641 N.W.2d at 530-31. This means an employer has some obligation, based on the employee’s initiation of the process, to reassign a disabled employee who has become disabled and can no longer perform the essential functions of his or her job as a reasonable accommodation. Id.

We have not fully illuminated the parameters of this obligation to accommodate through reassignment, but it is clear it involves an interactive process that engages the employee and employer to work in concert to achieve a reasonable accommodation once the employee has expressed a desire for reassignment. See Smith, 180 F.3d at 1170-78. At the same time, an accommodation by reassignment does not require an employer to respond by creating a vacant position. Schlitzer, 641 N.W.2d at 530. Additionally, an employee who seeks reassignment as an accommodation to a disability must identify a specific available job the employee is qualified to perform to ultimately recover under the statute. Id. at 530-32. Even if an employer fails to fully assist an employee in a request for reassignment, the employee must still show a specific position was available that he or she could have sought. See Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 258 (6th Cir.2000); Smith, 180 F.3d at 1174. Without this showing, an employee cannot establish he or she is a qualified person. Schlitzer, 641 N.W.2d at 530-32.

C. Adverse Employment Decision.

The final element requires the claimant to show he or she suffered an adverse employment decision because of his or her disability. Id. at 530. This element generally considers the existence of discrimination, and primarily focuses on the reasons for the adverse employment decision or action. Once a claimant establishes a prima facie case, this element considers the employer’s proffer of a legitimate non-diseriminatory reason under the McDonnell Douglas analysis, as well as evidence that the employer’s reason is a pretext for discrimination. See Price v. S-B Power Tool, 75 F.3d 362, 366 (8th Cir.1996). Additionally, this element can properly consider the failure to make a reasonable accommodation. Under the ADA, the failure to make a reasonable accommodation for an otherwise qualified person with a disability constitutes discrimination. See 42 U.S.C. § 12112(b)(5)(A); Smith, 180 F.3d at 1167 (failure to reassign is an act of discrimination). Thus, the failure of an employer to make a reasonable accommodation can be a separate claim for recovery. See Carroll v. Xerox Corp., 294 F.3d 231, 237-38 (1st Cir.2002).

IV. Blackford’s Status as a Disabled Person.

The parties stipulated Blackford was an alcoholic with a serious drinking problem. He was disabled under the statute. Thus, the first element of the claim was established.

V. Blackford’s Status as a Qualified Person.

Casey’s contends Blackford failed to establish he was a qualified person as a matter of law because he was rendered unqualified to perform his job due to the loss of his driver’s license, not his disability. Similarly, Casey’s claims it had no obligation to accommodate Blackford through a transfer to a different job or a leave of absence because his inability to perform his existing job was not based on his disability but a legal impediment resulting from his criminal conduct. These arguments essentially challenge the second element of a discrimination claim, and were accepted by the district court as grounds for reversing the Commission and dismissing the complaint.

We have not fully addressed the significance of a distinction between disability and conduct, and its impact on a discrimination claim under section 216.6. We have indicated that our statute permits an employee to establish a discriminatory motive under the third element of a claim as long as the conduct claimed to support the termination is causally related to the disability. Boelman, 522 N.W.2d at 77-78 (employee who suffered from job performance problems related to his multiple sclerosis was discharged because of his disability). At the same time, we have recognized that disability-related conduct is properly considered in determining whether an employee is qualified to perform the essential functions of a job under the second element of a claim. Id. at 80-81. However, we have not considered the impact of a disabled worker’s inability to perform the essential functions of a job as a result of misconduct or other consequences of illegal activity on the qualified person element of a claim or the employer’s duty to accommodate.

We agree with Casey’s that our statute exists to prohibit discrimination based on a disability, not matters unrelated to disability. Additionally, some courts have drawn a distinction between a disability and disability-caused misconduct, and concluded that employers do not need to make reasonable accommodations when the inability of a disabled worker to qualify for a job resulted from misconduct. See Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1087-88 (10th Cir.1997); Harris v. Polk County, Iowa, 103 F.3d 696, 697 (8th Cir.1996). However, a close examination of these cases reveals that the dichotomy established between disability and misconduct under the ADA applies only in the context of alcoholism and illegal use of drugs. Den Hartog, 129 F.3d at 1086. It is limited to alcoholism and drug use because the ADA specifically carves out an exception for alcoholism and drug use. See 42 U.S.C. § 12114(c)(4). This section provides employers

may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.

Id.

Notwithstanding, it is unnecessary for us to decide in this case if our state statute would follow the ADA treatment of alcoholism or would otherwise recognize the distinction between disability and misconduct urged by Casey’s. This is because Blackford avoids any clash with Casey’s arguments by emphasizing that his claim does not involve Casey’s decision to terminate him from his position as a truck driver or his qualifications as a truck driver, but instead involves the failure of Casey’s to reassign him to another job once he could no longer perform the truck driving job. Furthermore, Blackford points out that his claim is not based on reassignment under the statutory duty of an employer to accommodate his disability, but under the company transfer policy. Thus, Blackford asserts that his claim boils down to one of disparate treatment based on the failure of Casey’s to transfer him to a non-driving position in the same manner as other non-disabled employees have been transferred. Under this approach, Blackford only seeks protection under the statute as an alcoholic, on grounds that the statute requires the employer to consider him for reassignment to another position the same as any other employee who seeks reassignment. These claims are consistent with the findings of the Commission in this case. It found Blackford informed Casey’s he wanted to transfer to a non-driving position and that such a position would have most likely been found if Casey’s had promptly considered his request. It is also consistent with the Commission’s finding that Casey’s did not transfer him to a non-driving position because he was an alcoholic. Thus, we consider Blackford’s claim in the manner he asserts it was presented to and decided by the Commission.

We first consider the claim based on Casey’s failure to reassign Blackford separate from the leave of absence claim. We agree with Blackford that the statute separately prohibits an employer from discriminating against a disabled employee who seeks to transfer from an existing position to a vacant position, in addition to prohibiting an employer from discriminating against an employee who is no longer able to perform an existing job and seeks reassignment as a reasonable accommodation. Smith, 180 F.3d at 1164 (an employer cannot discriminate against a “disabled individual on the basis of his or her disability” whether the person is “an existing employee seeking reassignment or an outside job placement”). Thus, our statute protects Blackford from discrimination, as he claims, whether he is seeking a reassignment as an accommodation or as an applicant for an open position independent of an accommodation. See Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 289 n. 19, 107 S.Ct. 1123, 1131 n. 19, 94 L.Ed.2d 307, 321 n. 19 (1987) (although the Rehabilitation Act initially made no mention of a duty to accommodate, and the corresponding regulations to the act limited the definition of “qualified” to the particular position in question, an employer was still obligated to find an alternative job for a disabled worker if the employer normally did so under an existing transfer policy). Yet, in both instances, a claimant must establish all three elements to recover, including the second element that he or she is qualified to perform the job held or desired.

Athough we interpret our statute to impose a duty on an employer to accommodate a worker who is unable to perform his or her job because of a disability, we still require an employee who seeks reassignment as an accommodation to show, as a predicate to recovery, that reassignment to a vacant position could have been accomplished. Smith, 180 F.3d at 1174. It is not enough for the employee to make a general claim of the existence of the vacant position. The employee must specifically identify the position or positions that were available. Id. at 1179; Schlitzer, 641 N.W.2d at 531. It is only in the context of a particular job that the court can evaluate a claimant’s qualifications to perform its essential functions. Schlitzer, 641 N.W.2d at 531.

We are unable to identify any reason to drop this requirement of an employee to identify a specific open position when reassignment is sought independent of the employer’s duty of accommodation. Just as in accommodation claims, when the court is presented with a disparate treatment case based on the failure to reassign, it must evaluate a claimant’s qualifications in the context of the essential functions of a particular job. Additionally, it is basic to our statute that a claim must be premised on a particular job held, or one that is sought or desired. Thus, even if an employee relies on a company transfer policy, instead of the statutory obligation to reassign, the employee must still identify a specific available position.

Under the record, it is clear, as Casey’s argues, that the Commission erred in finding Blackford was a qualified person. At best, the evidence produced by Blackford showed that a three-way job switch was possible. Additionally, the evidence showed it was likely that some job could have been found for Blackford if Casey’s would have used its full resources to locate an open position. Yet, this evidence falls below the necessary standard of proof.

“An employer is not required to create a vacancy.” Id. at 530. Nor are employers required to “displace existing employees from their positions.” Burns, 222 F.3d at 257. A job switch arrangement requires an employer both to create an opening and to displace an existing employee. Thus, evidence of a possible job switch does not satisfy the requirement to identify a specific available job. Furthermore, an employee cannot satisfy the requirement to specifically identify a vacant position by evidence that some job could have been found at the time the request for reassignment was made if the company had done more to find a job. A general interest in some job is insufficient to establish the qualified person element of a discrimination claim. See Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 919 (7th Cir.2000).

The record did reveal evidence presented at one of the administrative hearings indicating Casey’s hired some new employees for jobs Blackford likely would have been qualified to perform, such as ground and building maintenance positions, during the relevant time frame after Blackford began to inquire into a possible transfer. Nevertheless, this type of evidence does not aid Blackford’s claim under the circumstances because there was no additional evidence Blackford sought these jobs or that the company transfer policy required Casey’s to notify Blackford of these jobs or help him secure a job. Blackford’s claim did not implicate Casey’s duty to accommodate his disability through a transfer. Moreover, the transfer policy was extremely vague, and at best, only encouraged department heads to post open jobs to allow existing employees to apply for the jobs before opening the positions to new employees. There was no evidence Blackford followed this policy or that he requested a transfer to a specific open position. In the context of Blackford’s specific claim of discrimination, he was required to identify a specific job he actually sought or desired to support his claim for discrimination.

Likewise, the discrimination claim by Blackford based on the leave of absence must also fail. The leave of absence claim is tied to the transfer claim, and was argued by Blackford only on the basis that a leave of absence could have been used to assist Blackford in accomplishing a transfer to a non-driving job in the event such a job was not immediately available at the time Blackford lost his license and was unable to work as a driver. Blackford never sought a leave of absence, but specifically argues on appeal that it was a way of effectuating the transfer.

Although this argument might expand the window of time for an employee to show a vacant position was available, an employee must still establish an open position would have been available during this window of time. Blackford has not presented any evidence of a specific vacant position for which he qualified during any period of time. Accordingly, the claim must fail.

Like the ADA, our unfair employment practices statute exists to eliminate discrimination against persons with disabilities, as well as discrimination based on other protected characteristics. See Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir.1996) (quoting 42 U.S.C. § 12101(b)(1)). We interpret the statute consistent with this purpose so that persons with disabilities will not suffer discrimination at the hands of employers in this state. See Miller v. Westfield Ins. Co., 606 N.W.2d 301, 303 (Iowa 2000) (a statute is construed to best effectuate its purpose and redress wrongs sought to be remedied). Nevertheless, standards have been developed as a predicate to recovery of claims, one of which requires a claimant seeking reassignment to show he or she was qualified to perform a specific vacant position sought. Blackford failed to satisfy this burden. In reaching this conclusion under this record, we recognize neither party had the benefit of Sehlitzer, nor the other law that has been developed in this rapidly growing area since the claim was first brought. Schlitzer was our first opportunity to develop the requirement to identify an open position, and we are still shaping the meaning of an employer’s duty to accommodate. Yet, judicial decisions generally operate retroactively and prospectively, and we apply the law to a case that exists at the time the case comes before us. See N. River Ins. Co. v. Iowa Div. of Ins., 501 N.W.2d 542, 546 (Iowa 1993); In re Estate of Weidman, 476 N.W.2d 357, 361 (Iowa 1991). There is no reason to deviate from this rule.

YI. Conclusion.

We conclude as a matter of law that Blackford failed to establish he was a qualified employee. There was insufficient evidence to show a specific vacant job was available during the period of time he sought reassignment. For this reason, his claim for discrimination must fail, and we need not address the remaining issues. We affirm the district court.

AFFIRMED.

      . Blackford originally claimed discrimination based on the failure of Casey's to accommodate him in his truck driving job by helping him obtain a restricted license, the failure to place him on an unpaid leave of absence during the period of his suspension or until another job became available, and the failure to transfer him to a non-driving position. The Commission found discrimination on all three grounds, but Blackford dropped his temporary restricted license argument on appeal. Moreover, he merged the leave of absence and failure to transfer claims, and urges that the Commission’s decision should be reinstated based on Casey’s failure to transfer him or to grant him a leave of absence until a transfer was available. Thus, we do not address the temporary restricted license claim.

      . There are two basic theories of employment discrimination, both applicable to disability cases: disparate treatment and disparate impact. Disparate treatment occurs when an employer treats a person less favorably than others because of his or her protected characteristic, such as a disability. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 1705, 123 L.Ed.2d 338, 346 (1993). The claimant must prove an adverse employment decision based on a disability. Disparate impact involves facially neutral employment practices or fixed qualifications that in fact impact one group, such as the disabled, more harshly than others and "cannot be justified by business necessity” or the particular business activity involved. Id. Here, proof of a discriminatory motive is not required. Id. Blackford limits his claim in this case to a disparate treatment theory. He makes no claim under a disparate impact theory. See Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1195-96 (7th Cir.1997) (employer rule that truck driver have valid driver’s license or pilot have good vision bears more heavily on the disabled than the non-disabled, but is permitted because it is reasonable).

      . This analysis is not followed in all discrimination cases. The McDonnell Douglas analysis was formulated because direct evidence of discrimination is frequently unavailable, and an employee must rely on circumstantial evidence to establish discriminatory intent. See U.S. Postal Serv. Bd. of Governors v. Athens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 411 (1983). Thus, special burden of proof rules were developed to allocate the order of proof to resolve "the elusive factual question of intentional discrimination.” Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207, 216 n. 8 (1981). The McDonnell Douglas approach applies to pretext claims, and is modified somewhat under a mixed-motive case. See Boelman v. Manson State Bank, 522 N.W.2d 73, 78 (Iowa 1994). However, it is unnecessary to engage in the analysis in a direct evidence case where the issue centers on whether the use of the prohibited factor was appropriate. See id.; Rizzo v. Children's World Learning Ctrs., Inc., 84 F.3d 758, 762 (5th Cir.1996). Furthermore, many courts have concluded that the McDonnell Douglas analysis is inapplicable to reasonable accommodation claims where the issue is whether the employer failed to reasonably accommodate the employee's disability. See Walsted v. Woodbury County, 113 F.Supp.2d 1318, 1326 n. 3 (N.D.Iowa 2000); Canteen Corp. v. Pennsylvania Human Relations Comm’n, 814 A.2d 805, 811-12 (Pa.Cmwlth.2003).

      . The failure of an employer to accommodate may also impact the third element of a discrimination claim. Discrimination is defined under the ADA to include the failure to make a reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A) (2000). Because we ultimately find this case is resolved based upon the failure of proof under the second element, it is not necessary for us to address the issues raised under the third element.

      . In a case where the duty of an employer to accomodate a disability is at issue, we recognize the failure of an employer to properly respond to an employee’s request for reassignment can make it difficult for a claimant to prove a specific vacant position was available. However, our statute protects against disability in existing or open employment positions, and does not establish a preference for disabled workers. While the failure of an employer to fully engage in the interactive process may affect an employer's ability to resolve a discrimination claim by summary judgment proceedings, it does not alleviate the need for the claimant to establish a vacant position was available to ultimately recover. See Hines v. Chrysler Corp., 231 F.Supp.2d 1027, 1050-53 (D.Colo.2002). If a position would have been available at the time a request for reassignment was made, the normal discovery process in the course of litigation will bear it out. A claimant cannot rely on his or her general knowledge or the employer’s lack of accommodation efforts, but must ultimately present evidence at trial of a vacant position he or she would have been qualified to perform.


author: TERNUS, Justice.

text:
    Randy W. BROOKS and Lori L. Brooks, Appellants, v. Bob HOLTZ d/b/a Holtz Construction, and Lester Building Products, Appellees.
    No. 00-2012.
    Supreme Court of Iowa.
    April 2, 2003.
    Rehearing Denied May 27, 2003.

      Joseph J. Bitter of Bitter Law Offices, Dubuque, for appellants.
    David L. Riley of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellee Bob Holtz d/b/a Holtz Construction.
    Guy R. Cook and Donna R. Miller of Grefe & Sidney, PLC, Des Moines, for appellee Lester Building Products.
   TERNUS, Justice.

The appellants, Randy Brooks and Lori Brooks, appeal an adverse jury verdict on their personal injury claim, asserting error in the trial court’s ruling on the admissibility of an exhibit and an abuse of discretion in the court’s refusal to allow the jury to take a videotape exhibit to the jury room during its deliberations. The court of appeals affirmed the judgment in favor of the appellees, Bob Holtz d/b/a Holtz Construction and Lester Building Products, concluding the plaintiffs had not preserved error on their evidentiary objection and finding no abuse of discretion in the court’s decision to withhold the videotape from the jury.

This court granted further review. Because we think error was preserved on the plaintiffs’ challenge to the trial court’s evi-dentiary ruling, we vacate the court of appeals decision. Upon our examination of the record, however, we find no reversible error in the trial court’s rulings and so affirm the judgment of the district court in favor of the defendants.

I. Background Facts and Proceedings.

Randy Brooks was injured when he fell from the rafters of his detached garage while installing insulation. At the time of his fall he was sitting on a plank he had placed across two two-by-four rafters. Brooks claimed that one of the two-by-fours had saw cuts in it that caused it to break under the weight of the plank and his body.

A few days after the accident, Brooks’ brother and son videotaped the scene of Brooks’ fall. This videotape shows a broken two-by-four hanging from the rafters and the other section of the two-by-four on the floor underneath a plank. It also shows a saw cut partially through the broken two-by-four at the site of the break.

Brooks and his wife brought suit against Lester Building Products,' who had designed the garage and supplied the materials, and Bob Holtz, the contractor who built the structure. The case proceeded to a jury trial on claims of negligence and strict liability. The jury returned a verdict in favor of the defendants, and the trial court overruled the plaintiffs’ posttrial motions.

The plaintiffs’ subsequent appeal was transferred to the court of appeals. That court affirmed the district court judgment, and this court then granted the plaintiffs’ petition for further review.

II. Issues.

Although the plaintiffs appealed on several grounds, they address only three issues in their request for further review. First, they claim the district court erred in excluding from evidence a letter signed by Terry Brady, a witness called by the plaintiffs. In a related argument, the plaintiffs claim error in the trial court’s refusal to allow their attorney to refer to the letter in his cross-examination of this witness. The final complaint made to this court concerns the trial court’s order that the videotape exhibit would not be made available to the jurors during their deliberations.

III. Error Regarding Signed Letter.

A. Trial court 'proceedings. The plaintiffs called as a witness Terry Brady, who was a member of the first responders team that answered Brooks’ emergency call for help. Brady testified that, before he left the site, he tried to determine how far Brooks had fallen so this information could be included in his report. Brady stated he saw a plank lying on the floor and then looked up to see how high the rafters were. He testified he did not see any two-by-fours on the floor or a broken stub of a two-by-four hanging in the air. He did, however, see a small crack and a very small indentation (although he said this may have been an “optical illusion”) in a two-by-four rafter located above the fallen plank. Brady denied seeing any cuts on the underside of this two-by-four.

The plaintiffs’ attorney attempted to question Brady about statements attributed to him in a letter prepared by plaintiffs’ counsel. Apparently, a year prior to trial Brady visited with Brooks and his attorney at the garage where Brooks fell. Later, Brooks’ attorney wrote a letter to opposing counsel in which he summarized the support for his clients’ case. Brooks’ attorney stated that Brady said “the place he [Brady] looked at shortly after he first responded was closer to the back of the garage, not at the front of the garage where [Brooks] fell,” and that Brady would “confirm that when he looked up after entering the garage shortly after [Brooks’] injury that he was looking at a different place in the garage than the place where [Brooks] was situated when he fell.” A copy of this letter was sent to Brady, who signed an acknowledgement at the end of the letter that he had “received a copy of the enclosed letter and agree[d] with the facts set forth therein.”

At trial, Brady admitted he had returned to the garage in the company of Brooks and his attorney and that, subsequent to this visit, he had received a letter from the plaintiffs’ attorney. Brady also acknowledged that he had signed the letter.

The plaintiffs then sought to have the letter admitted into evidence for the limited purpose of impeachment. The defendants objected on several grounds: (1) the letter was hearsay; (2) the letter was not a “statement” of the witness; (3) nothing in the letter contradicted the witness’s testimony; and (4) portions of the letter relating to settlement negotiations were inadmissible. In response, the plaintiffs agreed to redact any statements relating to settlement, including their counsel’s commentary and argument in support of his clients’ case.

Without specifying the basis for its decision, the court refused to admit the letter into evidence. The plaintiffs then made an offer of proof, after which the court renewed its ruling and denied the plaintiffs’ additional request that they be allowed to refer to the letter for impeachment purposes during their questioning of Brady.

B. Court of appeals ruling. The plaintiffs assigned the trial court’s ruling with respect to admission and use of the letter as a basis for reversal on appeal. The court of appeals did not reach the merits of this issue, however, because it held error was not preserved. This conclusion was based on the plaintiffs’ failure to submit a redacted copy of the letter as part of their offer of proof. We disagree with the court of appeals’ resolution of this issue and so discuss the question of error preservation before turning to the merits of the plaintiffs’ alleged error.

C. Error preservation. Our rules of evidence provide that error may not be predicated on a ruling excluding evidence unless “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Iowa R. Evid. 5.103(a)(2). We have said that an offer of proof is necessary for two reasons: (1) “to give the trial court a more adequate basis for its evidentiary ruling”; and (2) “to make a meaningful record for appellate review.” State v. Ritchison, 223 N.W.2d 207, 212-13 (Iowa 1974); accord State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999). “[A] meaningful record for appellate review” exists when the court does not have to speculate on the evidence sought to be introduced. Ritchison, 223 N.W.2d at 212-13.

The letter at issue here presents a more complex evidentiary question than the typical exhibit because the portions of the letter addressing settlement were clearly inadmissible. See Iowa R. Evid. 5.408 (stating offers of compromise, as well as conduct and statements made during compromise negotiations, are generally inadmissible). In such a situation, where part of the evidence is admissible and part is not, “it is incumbent on the offeror, not the judge, to single out the admissible part.” 1 John W. Strong, McCormick on Evidence § 51, at 219 (5th ed.1999) [hereinafter McCormick on Evidence ]. “When counsel offers both good and bad together and the judge rejects the entire offer, the offeror may not complain on appeal.” Id.

In evaluating the sufficiency of the offer of proof in this case, we examine whether the offer of proof made apparent what plaintiffs sought to have admitted. See Greene, 592 N.W.2d at 28. Although most situations involving a writing that is only partly admissible will call for counsel to submit a redacted version of the challenged exhibit in order to fully inform the trial judge, and the appellate court, of the portions counsel seeks to introduce, we do not think that step was required here. That is because there was no disagreement between the parties that the portions of the letter discussing settlement would be omitted before the exhibit’s admission into evidence. Furthermore, based on our review of the letter and the statements made by plaintiffs’ counsel at trial, we think the trial court would have had no problem in identifying the portions of the letter plaintiffs’ counsel sought to use as impeachment, as distinguished from the portions that would be redacted. Defendant Holtz concedes as much in his brief, wherein he states that “[i]t is clear” from the plaintiffs’ offer of proof what the plaintiffs wanted to question Brady about in reference to the letter.

Under these circumstances, we do not think the failure of the plaintiffs to submit a redacted copy of the letter in its offer of proof caused any confusion or speculation by the trial court as to the offered evidence, nor would this omission require the reviewing court to speculate as to the evidence at issue. Accordingly, the offer of proof made in this case accomplished its intended purpose and was, therefore, not deficient. Cf. Ritchison, 223 N.W.2d at 213 (holding error preserved where specific evidence sought to be introduced “was abundantly clear” from the record even though no offer of proof was made); State v. Buckner, 214 N.W.2d 164, 168 (Iowa 1974) (holding no offer of proof necessary when the evidence sought to be admitted was obvious from the context within which the evidentiary issue arose).

D. Propriety of court’s exclusion of letter. The plaintiffs argue on appeal that portions of the letter were admissible as a prior inconsistent statement of witness Brady, and therefore the trial court erred in excluding the letter and prohibiting the plaintiffs from questioning Brady about it. The defendants contend the trial court was correct because the proffered statements in the letter were hearsay. They point out that Brady did not make any statements at trial that were inconsistent with the statements attributed to him in the letter. Our review of the trial court’s ruling is for correction of errors of law. McElroy v. State, 637 N.W.2d 488, 493 (Iowa 2001) (stating “we review hearsay rulings for correction of errors at law”).

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Iowa R. Evid. 5.801 (c) (emphasis added). There is no dispute that the statement at issue here was not made by the declarant — Brady—while testifying at trial. The fighting issue is whether it was offered as proof of the matter asserted, i.e., that Brady looked at a place other than the site of the fall when he viewed the scene on the day of the accident. The plaintiffs claim the evidence was not offered to prove this fact. They assert it was offered for the limited purpose of impeachment: to show that Brady has said different things at different times, and so his testimony in general was unreliable.

One noted treatise on evidence explains the use of impeachment evidence in this way:

The attack by prior inconsistent statement is not based on the theory that the present testimony is false and the former statement true but rather upon the notion that talking one way on the stand and another way previously is blowing hot and cold, raising a doubt as to the truthfulness of both statements.

McCormick on Evidence § 34, at 126. Because the out-of-court statement is offered to prove the witness’s testimony is unreliable rather than to prove the truth of the matter asserted out of court, the prior inconsistent statement is not substantive evidence. State v. Allen, 348 N.W.2d 243, 246 (Iowa 1984). Thus, “[a] prior inconsistent out-of-court statement offered for impeachment purposes falls outside of the definition of hearsay.” State v. Nance, 533 N.W.2d 557, 561 (Iowa 1995).

As these principles make apparent, the foundational basis for admissibility of an out-of-court statement as impeachment is a contradictory statement by the declarant at trial. Bauer v. Cole, 467 N.W.2d 221, 225 (Iowa 1991) (“[A] previous statement of a witness cannot be used for impeachment unless the present testimony is at material variance with the prior statement.”). See generally McCormick on Evidence § 34 (discussing degree of inconsistency required for admission of prior inconsistent statement). The defendants asserted at trial that Brady had not testified inconsistently with the factual assertions attributed to him in the letter prepared by the plaintiffs’ attorney. They make the same argument on appeal: “Brady did not make any contradictory statements that would allow for impeachment.”

The plaintiffs’ only response to the defendants’ argument is a general statement in their brief that Brady’s “testimony is significantly at variance on critical points.” They do not, however, state the precise testimony from Brady that is at variance with the letter, nor do the plaintiffs direct the court to exactly where in the record such contradictory testimony appears. We will not assume such testimony exists in the absence of its identification, together with adequate citation to the record. See Estate of Leonard v. Swift, 656 N.W.2d 132, 147 n. 4 (Iowa 2003) (refusing, where brief contained inaccurate reference to place in appendix where pertinent court orders could be found, to undertake an independent review of the record to locate the orders or to consider party’s claim of issue preclusion based on such orders); Hoefer v. Wis. Educ. Ass’n Ins. Trust, 470 N.W.2d 336, 342 (Iowa 1991) (stating failure to cite to record or transcript for factual support permits court “to ignore [a party’s] contentions altogether”). Without such testimony, the plaintiffs cannot claim that the letter was offered as impeachment, i.e., to show the witness has said different things on different occasions.

Because we cannot conclude on the record before us that the prior statements are impeaching, we must evaluate the admissibility of these statements on the basis of the only other purpose for which they could be offered — as substantive evidence to prove that Brady looked in the wrong place on the day of the accident. Brady’s prior statements are, however, inadmissible as substantive evidence because they are hearsay: out-of-court statements “offered in evidence to prove the truth of the matter asserted.” Iowa R. Evid. 5.801(c) (defining hearsay).

In summary, we conclude Brady’s prior statements are inadmissible hearsay. Ae-cordingly, the trial court did not err in refusing to admit the letter as an exhibit and in prohibiting the plaintiffs from using the letter to cross-examine Brady.

IV. Court’s Ruling on Jury’s Use of Videotape Exhibit.

As noted previously, the plaintiffs introduced into evidence a videotape of the accident scene. This videotape was filmed by Brooks’ son and shows Brooks’ brother in the garage, pointing to and describing the location and condition of the plank and the two-by-four allegedly involved in Brooks’ fall. The videotape also contains commentary by both individuals on their understanding of how the accident occurred and the “negligence” of the “idiot” who constructed the building.

Although the tape was shown to the jury several times during the trial and was admitted into evidence, the trial court refused the plaintiffs’ request that the jury be allowed to have the tape during its deliberations. The jury itself never requested the tape during its consideration of the case. The plaintiffs complain that the court’s ruling constitutes an abuse of the trial court’s discretion and reversible error.

“[Sjubmission of exhibits to the jury is a matter resting in [the] trial court’s discretion.” Heth v. Iowa City, 206 N.W.2d 299, 303 (Iowa 1973); accord State v. Baumann, 236 N.W.2d 361, 366 (Iowa 1975) (stating a trial court has “considerable discretion” in determining what exhibits the jury may have during its deliberations). We will not upset a trial court’s discretionary decision unless the court exercises its discretion “ ‘to an extent clearly unreasonable’ ” or rests its decision on untenable grounds. Greene, 592 N.W.2d at 27 (citation omitted). “A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

Iowa Rule of Civil Procedure 1.926 provides, “When retiring to deliberate, jurors ... shall take with them all exhibits in evidence except as otherwise ordered.” Here, the court ordered that the videotape not be taken to the jury room. We have previously noted when certain types of evidence, such as depositions, are available to the jury, such evidence might be given “disproportionate importance in relation to other trial testimony, for which the jurors were required to call upon their recollection only.” Baumann, 236 N.W.2d at 366; see also Iowa R. Evid. 1.926 (“Depositions shall not be taken [to the jury room] unless all of the evidence is in writing and none of it has been stricken.”). In Bau-mann, we upheld a trial court’s decision to withhold audio tape recordings from the jury during its deliberations, even though the jury had requested the opportunity to listen to the tapes during its consideration of the case. Id.

The same result is warranted here. In determining that the videotape would not be sent with the jury, the trial court stated, “I personally think the jury has already seen the videotape more often than required.” Clearly, the trial court thought additional viewing of the tape would overemphasize this evidence. This judgment call was one for the trial court to make. Particularly in view of the oral commentary included in the videotape, there was nothing unreasonable about the court’s decision. Therefore, we will not disturb the trial court’s ruling on this issue.

V. Summary and Disposition.

Although the plaintiffs’ offer of proof was adequate to preserve error on the trial court’s refusal to admit evidence of prior, out-of-court statements made by witness Brady, the court’s ruling was not erroneous. These statements were inadmissible hearsay. Similarly, the trial court did not abuse its discretion in refusing to allow the videotape of the accident scene to be used by the jury during its deliberations.

We vacate the court of appeals decision and affirm the district court judgment in favor of the defendants.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . Although Iowa Rule of Evidence 5.801(d )(1) removes a limited category of out-of-court statements from the scope of the hearsay definition, that rule does not apply here. Rule 5.801(d)(1) provides in relevant part:
      The following statements are not hearsay:
      (1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition ....
      Iowa R. Evid. 5.801(d)(1) (emphasis added). Of course, the plaintiffs cannot rely on this rule here because the letter at issue does not contain statements given by Brady under oath at a trial, hearing, deposition, or other proceeding.


author: CARTER, Justice.

text:
    Beverly A. DAVIS, Appellant, v. Janice HORTON, Individually and in her capacity as Webster County Treasurer, and Webster County, Iowa, Appellees.
    No. 02-0160.
    Supreme Court of Iowa.
    May 7, 2003.

      Roger J. Kuhle and John 0. Haraldson of Law Office of Roger J. Kuhle, P.C., West Des Moines, for appellant.
    Mark W. Thomas and Lisa R. Perdue of Grefe & Sidney, P.L.C., Des Moines, for appellees.
   CARTER, Justice.

Plaintiff, Beverly Davis, appeals from an adverse summary judgment in her action for wrongful discharge against Janice Horton, the Webster County Treasurer, in whose office she was employed, and Webster County. The suit is based on an alleged violation of 42 U.S.C. § 1983 and on an alleged retaliatory discharge for reasons that contravene an established public policy. The district court granted defendants’ motion for summary judgment. Upon reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Davis had been an employee of the Webster County treasurer’s office since February 28, 1977. She was originally hired by Bob Hottman, the county treasurer at that time, and was eventually promoted to second deputy clerk in 1991. Horton was elected county treasurer in 1994 and appointed Davis as first deputy clerk. At the time of Horton’s election, the parties had worked together in the treasurer’s office for about fifteen to twenty years.

In 1998 the parties began having difficulties at work. Davis complained that Horton told others that Horton’s previous hospital admission was caused by Davis. Horton made derogatory comments about Davis’s husband and accused Davis of planning to run against her in the next election. Horton complained about Davis’s work performance, attitude, and Davis’s numerous calls to her husband.

The county assessor, a mutual friend, became involved and attempted an informal mediation of the dispute between Davis and Horton. In July 2000 the county assessor was involved in a second informal mediation, which also involved two county supervisors.

On October 16, 2000, Davis followed the advice of a county supervisor and wrote the board of supervisors to request formal mediation of her dispute with Horton pursuant to a provision contained in a county employee handbook. The board of supervisors appointed Irene Blair to mediate the dispute between the parties. Ms. Blair met with both parties individually and then met with both of them on October 30, 2000. Following the conclusion of the mediation efforts by Blair, Horton decided to put Davis on sixty days probation and demoted her to second deputy clerk.

On November 1, 2000, attorney Stuart Cochrane wrote to the board of supervisors on Davis’s behalf asserting that the demotion was illegal and demanded that the action be rescinded. On November 29 Davis was terminated from her employment by Horton. Other facts that relate to this dispute will be considered in connection with our discussion of the legal issues presented.

I. The Claim Involving 42 U.S.C. § 1983.

Davis’s employment-related claim alleging a violation of 42 U.S.C. § 1983 was rejected by the district court. In order to succeed on that claim, she must necessarily show that her discharge adversely affected some property interest and was carried out without granting her due process of law. Bd. of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548, 556-57 (1972). Because she does not contend that she was other than an at-will employee, she did not possess a property interest in continuing employment and thus a requisite element for a claim under 42 U.S.C. § 1983 is missing. Rinard v. Polk County, 516 N.W.2d 822, 823 (Iowa 1994); City of Clinton v. Loeffelholz, 448 N.W.2d 308, 311 (Iowa 1989). The district court did not err in granting summary judgment against Davis’s § 1983 claim.

II. The Contention That Davis’s Discharge Violated Public Policy.

In support of her contention that the termination of her employment was in contravention of public policy and thus subject to legal redress, Davis asserts that the reason for her termination was either (1) her participation in the mediation program established in the manual for county employees, or (2) the hiring of an attorney to pursue her rights, or both of these reasons. She urges that both participation in an employer-sponsored mediation program and the hiring of an attorney are protected interests that may not be made the basis for a termination of employment.

An action for the tort of wrongful discharge exists when a protected activity has been recognized through the implementation of an underlying public policy that would be undermined if an employee were discharged from employment for engaging in that activity. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 281 (Iowa 2000). An employee asserting a wrongful-discharge claim based on violation of public policy must satisfy the court as to all of the following factors:

(1) The existence of a clearly defined public policy that protects an activity.
(2) This policy would be undermined by a discharge from employment.
(3) The challenged discharge was the result of participating in the protected activity.
(4) There was lack of other justification for the termination.

Id. at 282. These requirements have been identified as the clarity element, jeopardy element, causation element, and absence-of-justification element. Id.

We do not limit the public-policy exception to at-will employment relationships to the mandates of specific statutes but may imply a prohibition against termination if the policy basis for so doing clearly appears from other sources. Borschel v. City of Perry, 512 N.W.2d 565, 568 (Iowa 1994). In so doing, however, we proceed cautiously and will only extend such recognition to those policies that are well recognized and clearly defined. Fitzgerald, 613 N.W.2d at 283.

In analyzing Davis’s claim based on participation in a mediation process, we are satisfied that the mediation of disputes, although encouraged and frequently beneficial, is not an activity so imbued with public purpose as to satisfy the clarity element that our cases require. In addition, we are convinced that the causation element for that claim must also be resolved against Davis. The mere fact that an adverse employment decision occurred after her participation in a mediation process is not sufficient to support a decision that the adverse employment decision was in retaliation for her mediation effort. See Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 203 (Iowa 1997) (fact that discharge occurred one month after employee made discrimination claim not sufficient to establish causation).

The facts of the present case strongly suggest that the mediation process was not the final straw in Horton’s decision to terminate Davis’s employment. The mediation merely resulted in placing Davis on a probationary status. The termination occurred after Davis, acting through an attorney, challenged Horton’s disciplinary sanction.

Davis also contends that her severance from employment occurred because she hired an attorney. She urges that an adverse employment decision based on the seeking of legal assistance offends against a well-established public policy. Some support for that contention is found in Thompto v. Coborn’s Inc., 871 F.Supp. 1097 (N.D.Iowa 1994). In that case, the federal court recognized a cause of action for retaliatory discharge in violation of public policy when the discharge was based upon the consultation or threat of consultation with an attorney. Thompto, 871 F.Supp. at 1121. We are convinced, however, that on the facts of the present dispute it is clearly impossible to separate Davis’s act in hiring an attorney from her act in challenging a personnel decision made by her employer. Because an at-will employee may expect an adverse reaction to an attempted rebuke of an employer’s personnel decision, that act should not be insulated from sanction merely because it has been carried out through an attorney.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

All justices concur except LARSON and CADY, JJ., who take no part.