author: LAVORATO, Chief Justice.

text:
    PIC USA f/k/a Pig Improvement Company, Inc., Appellee, v. NORTH CAROLINA FARM PARTNERSHIP, Deitrich Klages, Individually, Joachim Engel, Individually, North Carolina Farm of Wise, L.L.C., and NCF Investments, L.L.C., Appellants.
    No. 02-0855.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      John D. Mayne and Missy J. Denton of Mayne, Marks & Madsen, L.L.P., for appellants.
    Charles T. Patterson, Margaret M. Prahl and Patrick L. Sealey of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, for appellee.
   LAVORATO, Chief Justice.

The defendants appeal from a district court ruling that in effect converted a temporary injunction into a permanent injunction and from a ruling releasing the temporary injunction bond. We reverse in both instances and remand the case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

This injunction proceeding arose out of an alleged breach of a lease agreement between PIC USA, fik/a Pig Improvement Company, Inc. (PIC) and North Carolina Farm Partnership (NCF), located in North Carolina. The subject of the lease agreement involved land and buildings that NCF owned on which PIC raised and bred genetically superior pigs for use in breeding pigs to be sold for slaughter.

PIC and NCF had a long relationship dating back to the 1980s based on prior lease agreements. The lease in question was dated April 1, 1994 but was not signed until 1996. Because PIC and NCF were unable to reach a new agreement for a new lease, the lease expired by its terms on March 31, 2000.

On June 27, 2000, NCF sued PIC in North Carolina, alleging that PIC removed some of the pigs from the leased facilities, did not return the leased facilities to their original condition, and did not yield possession of the facility and pigs, all in breach of the lease. On January 31, 2001, PIC answered and filed a counterclaim, alleging breach of contract, unjust enrichment, negligent misrepresentation, and unfair and deceptive trade practices. The counterclaim also sought injunctive relief based on NCF’s alleged unauthorized use of PIC’s intellectual property and trade secrets in the genetically superior pigs.

Although PIC had a claim for injunctive relief, it did not pursue it despite North Carolina’s rules that provide for temporary restraining orders. In subsequent discovery, PIC learned through the deposition of Martin Engel, a partner in NCF, that NCF had moved pigs to Iowa and intended to sell them as breeding stock. One of the major issues in this litigation was whether under the terms of the lease NCF could sell the pigs as breeding stock rather than for slaughter.

On November 26, 2001, PIC sought an injunction in the Iowa district court to prevent the sale of the pigs as breeding stock. Besides naming NCF as defendant, the suit also named as defendants, Dietrick Klages, Joachim Engel, and Martin Engel, all partners in NCF. Additionally, the suit named as defendants North Carolina Farm of Wise, L.L.C., a limited liability company located in North Carolina, and NCF Investments, a limited liability company located in North Carolina. The petition alleged that the two limited liability companies are successors in interest to the rights and liabilities of NCF and the individually named partners. (For convenience we shall hereinafter refer to all of the defendants as NCF.)

The prayer of the Iowa petition asked the court to temporarily, without hearing, and to permanently after hearing, enjoin NCF from selling 450 breeding females located in Iowa to any third person other than for slaughter.

On November 26 District Judge John D. Ackerman entered an ex-parte temporary restraining order (TRO) prohibiting NCF from “removing, transferring, or otherwise disposing or selling any of the 450 breeding females containing genetic material from the State of Iowa.” The order also prohibited “the removal and/or transfer of any breeding females within the State of Iowa from their current location until further order of this Court or the North Carolina Court in case # 01CVS15 in Warren County Superior Court.”

In the order the court set a hearing for November 30 to determine whether the TRO should continue. The court also required that a copy of the order be presented to the North Carolina judge handling the North Carolina litigation.

On November 30 District Judge Michael S. Walsh continued the hearing to December 7. On December 7 PIC filed a notification of bond, stating that a bond in the amount of $10,000 would be filed as soon as it was received. On December 18 Judge Walsh entered an order approving the bond that PIC intended to file. The order directed the clerk of court to approve the bond which the court believed to be an amount equal to or exceeding the 125% of the liability that PIC would probably incur because of the TRO.

Following the December 7 hearing, Judge Walsh on December 17 modified the TRO to allow NCF to sell for slaughter any animals owned by them currently located in Iowa. The judge also ordered NCF to report to the court the identification of the animals sold and the proceeds from such sale.

On January 4, 2002, Judge Walsh ruled that the TRO and the $10,000 bond would remain in effect. In his ruling, the judge found:

The defendants have placed pigs in Iowa for purposes of sale as breeding stock. These pigs are the progeny of animals that were born of parents having PIC genetics and originating from the breeding herd and location which are the subject of the parties’ agreement. The credible evidence demonstrates that these animals have been and will be sold as breeding stock contrary to the terms of the parties’ agreement [the lease]. The defendants intend to continue selling these animals as breeding stock if not enjoined. If the defendants are allowed to continue this action, the plaintiff will be irreparably harmed by misappropriation of the genetic markers that are unique to the PIC animals without compensation to the plaintiff. Unauthorized dissemination of genetic material to the plaintiffs competitors through the sale of these animals for breeding would adversely affect the plaintiffs ability to protect its trade secrets and products. PIC has developed the genetic improvements in its animals for more that 40 years and would be subject to irreparable harm if the defendant was permitted to sell animals for breeding when those animals were the product of the plaintiffs long-term genetic improvement efforts.

On April 17 PIC filed a motion for an order requiring NCF to file proof of compliance with the December 17 order. The motion sought proof that the pigs in Iowa had been sold for slaughter. In addition, PIC alleged in the motion that good cause existed for the court to release the bond. Specifically, the motion stated: “Defendants have not appealed from any of the orders, including the order granting and providing for permanent injunctive relief; i.e. the Court’s ruling of January 4, 2002.” In its request for relief, PIC asked the court to (1) set a hearing on the motion, (2) order a deadline for NCF to comply with the December 17 order, and (3) release the bond.

On May 6 NCF reported that on December 15, 17, and 18 it had sold 367 pigs for slaughter for a total of $32,258.44. On the same day NCF filed a resistance to PIC’s April 17 request to release the bond and in its resistance moved to increase the bond.

On May 22 Judge Walsh ruled on PIC’s April 17 motion:

The defendants remain enjoined under the terms of the January 4, 2002, ruling, which has not been vacated or modified and was never appealed. The purpose of a bond is to protect against potential damages that may result from a temporary injunction that was improvidently or erroneously issued and which may be vacated rather than continued. While the defendants remain opposed to the injunction, there is no pending litigation that includes the prospect of overturning the injunction granted in this case or establishing damages. In spite of what label one might put on it, a temporary injunction which, after hearing, was continued indefinitely and which has never been vacated or modified and has never been appealed becomes, for all practical purposes, permanent in nature.
IT IS THEREFORE THE RULING OF THE COURT that there is no need to maintain a bond to protect against potential damages from an injunction which is permanent in nature. The plaintiffs request that the bond posted by the plaintiff be released is sustained.

(Emphasis added).

On the same day, by separate order, Judge Walsh overruled NCF’s motion to increase bond, citing reasoning he applied in his ruling releasing PIC’s bond.

NCF appealed.

II. Standard of Review.

We recently stated our standard of review governing the issuance of an injunction:

Generally, our standard of review for the issuance of injunctions is de novo. This de novo review is based upon the equitable jurisdiction of the court to issue injunctions. Yet, the decision to issue or refuse “a temporary injunction rests largely [within] the sound discretion of the [district] court.” We recognize a temporary injunction is a delicate matter, and the exercise of judicial power to issue or refuse a temporary injunction “requires great caution, deliberation, and sound discretion.” Thus, we will not generally interfere with the district court decision unless the discretion has been abused or the decision violates some principle of equity.

Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178, 180-81 (Iowa 2001) (citations omitted). “[T]his discretion is a legal one, and, if not based upon sufficient grounds, will be reversed upon appeal.” Swan v. City of Indianola, 142 Iowa 731, 734, 121 N.W. 547, 549 (1909).

III. Issues.

Although NCF raises numerous issues, we consider only three because the others either lack merit or were not properly preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (holding that issues must be both raised and decided by the district court before they will be addressed and decided on appeal). The first issue is whether the district court abused its discretion when it in effect converted the TRO into a permanent injunction without a final hearing on the merits. The second issue is whether the district court abused its discretion in releasing the bond. The last issue is whether the district court abused its discretion in not increasing the bond.

IV. Did the District Court Abuse its Discretion When it in Effect Converted the TRO into a Permanent Injunction Without a Final Hearing on the Merits?

A. Applicable law. Iowa Rule of Civil Procedure 1.1502 (formerly rule 321) describes three situations in which a court may issue a temporary injunction. See Iowa R. Civ. P. 1.1502. The situation applicable here concerns an act causing great or irreparable harm. Iowa R. Civ. P. 1.1502(1).

A party may obtain a temporary injunction as an independent remedy in an equitable action, or as an auxiliary remedy in any action. Id. 1.1501. To determine whether the request for injunction is independent or auxiliary, a court need only strike the request for injunction and then ascertain from what is left whether a cause of action remains. Chrisman v. Schmickle, 209 Iowa 1311, 1314, 230 N.W. 550, 551 (1930).

The standards a court considers in granting temporary injunctions are similar to those for permanent injunctions. Max 100 L.C., 621 N.W.2d at 181. One important exception concerns the burden of proof: temporary injunctions require a showing of the likelihood of success on the merits whereas permanent injunctions require actual success. Id.

Another important exception concerns the type of evidence that a court may properly consider. Under our rules, “permanent injunctions are those granted as part of a final judgment, while temporary injunctions are those granted at any prior stage of the proceedings.” Kleman v. Charles City Police Dep’t, 373 N.W.2d 90, 95 (Iowa 1985); see also Iowa R. Civ. P. 1.1501 (“An injunction may be granted as part of the judgment; or may be granted by order at any prior stage of the proceedings, and is then known as a temporary injunction.”). “Rules of evidence are applied more strictly on final hearing of a cause than on an application for temporary injunction, when evidence that would not be competent to support a perpetual injunction may properly be considered.” Kleman, 373 N.W.2d at 95.

A further exception concerns the status of the court’s order for purposes of appeal. Decisions on requests for temporary injunctions are interlocutory in nature. Wolf v. Lutheran Mut. Life Ins. Co., 236 Iowa 334, 344-45, 18 N.W.2d 804, 810 (1945). An appeal of such a decision is therefore interlocutory and for that reason is not allowed as a matter of right. In contrast, an appeal of a permanent injunction after final hearing is allowed as a matter of right. See Iowa R.App. P. 6.1(3) (“No interlocutory ruling or decision may be appealed except as provided in rule 6.2 until after the final judgment or order.”); 6.2(1) (allowing party aggrieved by an interlocutory ruling or decision to apply to the supreme court to grant an appeal in advance of final judgment provided party meets certain conditions).

Because decisions on requests for temporary injunctions are interlocutory, a denial of such a request does not preclude a party from seeking a permanent injunction. A court may have properly denied a request for temporary injunction even though the same court later grants a permanent injunction after a full trial on the merits. Iowa City v. Muscatine Dev. Co., 258 Iowa 1024, 1033, 141 N.W.2d 585, 591 (1966).

Additionally, because requests for temporary injunctions are interlocutory, a party may request a hearing to dissolve, vacate, or modify the temporary injunction. Iowa R. Civ. P. 1.1509. The rule does not limit the number of times a party may request such a hearing.

Once a court issues a permanent injunction following the grant of a temporary injunction, the temporary injunction merges into the permanent one. Foods, Inc. v. Leffler, 240 N.W.2d 914, 919 (Iowa 1976).

As this court recognized in Board of Education of Kimballton Independent School v. Board of Education of Audubon County:

Generally speaking, the court’s action in granting an application for a temporary injunction, or in denying its dissolution on motion, does not deprive the parties of the right to a trial on the merits of their petition seeking or resisting a permanent injunction, nor is it an adjudication for or against such right. Only the dissolution of the temporary injunction was asked in this motion, and relief was restricted to that issue.

260 Iowa 840, 845, 151 N.W.2d 465, 468 (1967); see also 42 Am.Jur.2d Injunctions § 10, at 568 (2000) (“A final or permanent injunction is perpetual in effect and can be granted only following a final hearing on the merits.”). Of course, the parties may agree to consolidate the hearing on the temporary injunction and the permanent injunction. Or the court may order consolidation of both hearings. See 43A C.J.S. Injunctions § 234, at 511; see also Quad-City Community News Service, Inc. v. Jebens, 334 F.Supp. 8, 18 (S.D.Iowa 1971) (parties stipulated that permanent injunc-tive relief would be determined from same evidence and court entered order to consolidate hearings).

B. Analysis. With these principles in mind we turn to the record in this case. In the ex-parte TRO, Judge Ackerman set a hearing to determine if the TRO should continue. Following the entry of the ex-parte TRO, PIC in its brief in support of the temporary injunction stated that it “seeks the continuation of the injunction to preserve the status quo by preventing the sale of those animals as breeding stock until a determination is made in North Carolina on the parties’ rights under the contracts.” Clearly, PIC understood the sole issue before Judge Walsh on December 7 was whether to continue or dissolve the ex-parte TRO.

Finally, before taking evidence at the December 7 hearing, Judge Walsh stated: “The issue before the Court today is whether or not this temporary injunction should continue or be dissolved.” Judge Walsh therefore also clearly understood the issue was whether to continue or dissolve the ex-parte TRO.

Although technically the injunction PIC sought was an independent remedy, in reality the relief sought was auxiliary. It was auxiliary in the sense that PIC sought to maintain the status quo until the North Carolina court could make a determination. This is evident from the very beginning when Judge Ackerman limited the ex-parte TRO “until further order of this Court or the North Carolina Court in case # 01CVS15 in Warren County Superior Court.” Also significant is that Judge Ackerman hand wrote the following in the ex-parte TRO: “It is represented to this Court that plaintiff would be unable to secure a similar order from the North Carolina Court within the time constraints as set forth in the petition. However, a copy of this Order shall immediately be presented to the judge handling the North Carolina lawsuit.”

Before the December 7 hearing on whether to continue the ex-parte TRO, PIC filed a brief in support of continuing the TRO. In that brief, PIC wrote the following: “PIC seeks the continuation of the injunction to preserve the status quo by preventing the sale of those animals as breeding stock until a determination is made in North Carolina on the parties’ rights under the contracts.” In the same brief, PIC represented that the continuation of the TRO would “not interfere in any way with the North Carolina court’s disposition of the action and [would] serve to preserve the status quo in Iowa until the case is finally determined in North Carolina.”

Following the December 7 hearing, Judge Walsh ordered the parties to file written closing arguments. In its written closing arguments PIC wrote:

[Dr. Johnson’s] testimony along with other evidence in the record has clearly met the test of whether PIC as Plaintiff on its counterclaim in North Carolina will prevail on the merits of its counterclaim, with sufficient likelihood to warrant the injunction remaining in place.

Clearly, before and after the December 7 hearing, PIC was acknowledging that the ex-parte TRO was auxiliary to the litigation in North Carolina.

PIC had a change of heart following its motion for injunctive relief in the North Carolina case on April 12, 2002 and Judge Walsh’s January 4, 2002 ruling continuing the TRO. In its reply to NCF’s resistance for release of bond filed on May 6, 2002, PIC wrote:

The purpose of the injunctive relief sought in this case was to prevent the sale of breeding stock from continuing within the state of Iowa. It was not to preserve the status quo during the pen-dency of a North Carolina lawsuit.

(Emphasis added.)

In his May 22 ruling, which is the subject of this appeal, Judge Walsh wrote: ‘While [NCF] remain[s] opposed to the injunction, there is no pending litigation that includes the prospect of overturning the injunction granted in this case or establishing damages.” Clearly, there was pending litigation in North Carolina that indeed included the prospect of overturning the TRO in Iowa. And once that litigation was completed, the outcome could determine whether the TRO in Iowa should become permanent. This becomes clear from the following events that occurred in the North Carolina litigation.

As mentioned, on April 12, 2002, PIC filed a motion for temporary injunction in the North Carolina litigation. The motion was based on the same allegations contained in PIC’s Iowa petition. The motion alleged that Judge Walsh’s January 4, 2002 ruling constituted a permanent injunction from which no timely appeal had been taken and therefore resulted in a final judgment. The motion further alleged that for these reasons under the principles of res judicata the North Carolina court was required to issue a similar injunction as that issued in Iowa.

On May 23, 2002, the trial court in the North Carolina proceeding advised the parties it would limit its ruling regarding PIC’s motion to the res judicata issue. In a June 6, 2002 ruling, the trial court rejected PIC’s res judicata contention. By this time, the trial court had in its possession Judge Walsh’s May 22 ruling and all of the other filings in the Iowa case including PIC’s brief in support of its request for temporary injunction filed on December 7, 2001, and a transcript of the December 7 hearing. Significantly, the North Carolina trial court, citing Iowa precedent, found that Judge Walsh’s January 4, 2002 ruling was not a final judgment because no final hearing on the merits was ever had. The North Carolina trial court astutely recognized that PIC was attempting to use NCF’s failure to appeal the Iowa TRO as a way to elevate a temporary injunction to the status of a permanent injunction. The North Carolina trial court then made the following finding:

Reduced to essentials, the Iowa Equity Injunction remains what it is — temporary injunction entered before trial on the merits, which, having not been appealed, is, for all practical effects, binding on the defendants only in Iowa pending the final determination of the issues in this North Carolina litigation, nothing more, nothing less.

After concluding Judge Walsh’s January 4, 2002 ruling was not binding on it, the North Carolina trial court ruled that PIC’s motion for temporary injunction remained for hearing.

Following such hearing on June 12, 2002, the North Carolina trial court on August 29, 2002 denied PIC’s request for a temporary injunction. In doing so, the trial court — contrary to Judge Walsh’s January 4, 2002 ruling — concluded that (1) the lease in question did not restrict the sale of PIC stock for purposes other than for slaughter and (2) any breeding stock of PIC left on NCF’s premises after the termination of the lease did not constitute a trade secret.

PIC appealed both the June 6 and August 29, 2002 rulings of the North Carolina trial court. The appeal is now pending in the North Carolina Court of Appeals. On November 14, 2002, that court granted PIC’s motion for temporary stay. The order granting the stay provides:

[NCF is] enjoined from engaging in the sales of any animals containing [PIC] genetic information other than for slaughter purposes pending the outcome of the appeal.

How the North Carolina Court of Appeals determines the issues before it will be outcome determinative as far as the Iowa TRO is concerned. If the North Carolina Court of Appeals agrees with the North Carolina trial court, NCF could use that decision to its advantage in the Iowa litigation. Res judicata principles would aid NCF in seeking a dissolution of the TRO. Such principles would also aid NCF in a final hearing on the merits. Waiting until the proceedings in North Carolina are concluded would accomplish the purpose of the Iowa TRO: to preserve the status quo until “further order of ... the North Carolina court.”

For these reasons we conclude Judge Walsh’s May 22, 2002 ruling was an abuse of discretion to the extent it converted the TRO into a permanent injunction without the benefit of a full-blown hearing on the merits. As a result of the conclusion we reach, the TRO remained a TRO. That brings us to the next issue.

V. Did the District Court Abuse its Discretion in Releasing the Bond?

A. Applicable law. Iowa Rule of Civil Procedure 1.1508 provides in relevant part:

The order directing a temporary injunction must require that before the wit issues, a bond be filed, with a penalty to be specified in the order, which shall be 125 percent of the probable liability to be incurred. Such bond with sureties to be approved by the clerk shall be conditioned to pay all damages which may be adjudged against the petitioner by reason of the injunction....

Iowa R. Civ. P. 1.1508. The purpose of the bond is to “indemnify the person enjoined or restrained from damage through the use of the writ.” Green v. Hanna, 232 Iowa 294, 298, 3 N.W.2d 618, 620 (1942).

Rule 1.1508 only requires a bond when a temporary injunction is granted. It does not require a bond once a permanent injunction is granted. See 42 Am. Jur.2d Injunctions § 10, at 569 (2000) (“There is no bond requirement in connection -with the issuance of a permanent injunction.”).

Because the TRO remained a TRO, releasing the bond was an abuse of discretion. On remand the district court shall order PIC to file a bond. That brings us to the last issue.

VI. Did the District Court Abuse its Discretion in Not Increasing the Bond?

As mentioned, NCF filed a motion to increase the bond. In support of its motion, NCF produced an affidavit of Martin Engel, a partner in NCF. In that affidavit Engel averred that because of the TRO, NCF had been and would continue to be deprived of a significant volume of business in Iowa which could amount to damages of $275,000. NCF contends the district court should therefore have increased the bond to conform to rule 1.1508.

Because of his May 22, 2002 ruling, Judge Walsh concluded there was no further need for a bond. The judge therefore did not decide NCF’s motion on the merits. To the extent that the judge ruled there was no need for a bond, the court abused its discretion.

We hesitate to say the court abused its discretion in refusing to increase the bond because the court never ruled on the merits of NCF’s motion. We have directed that on remand the district court order PIC to file a bond. Rather than this court ruling on the merits of NCF’s motion to increase the bond, we think it would be more appropriate for the district court to do so after allowing the parties opportunity to present evidence on the request.

VIL Disposition.

In sum, we conclude the district court abused its discretion when it converted the TRO into a permanent injunction without a final hearing on the merits. The purpose of the TRO was to preserve the status quo until resolution of the litigation in North Carolina. That has not occurred. Because the TRO remained a TRO, the court further abused its discretion by releasing the bond. Accordingly, we reverse the district court’s decision in both instances.

We remand the case for further proceedings consistent with this opinion. On remand the district court shall order PIC to file a bond at which time NCF shall have the opportunity to again request an increase in bond. The district court shall allow the parties an opportunity to present evidence on the request.

REVERSED AND CASE REMANDED WITH DIRECTIONS.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Mary M. RIEFF, Appellee, v. John E. EVANS, Douglas L. Anderson, Harold S. Evans, Jamie H. Shaffer, James W. Callison, James M. Hoak, Jr., Mark W. Putney, William J. Hancock, James D. Kirkpatrick, Charles I. Colby, George E. Moore, Herschel G. Langdon, Charles F. Morgan, Hardy G. Kuykendall, Walter J. Fayle, Allied Group, Inc., and Nationwide Mutual Insurance Company, Appellants, and Allied Mutual Insurance Company, Defendant.
    No. 02-0727.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      John A. McClintock and David L. Brown of Hansen, McClintock & Riley, Des Moines, and Michael R. Hassan and Bruce W. Foudree of Lord, Bissell & Brook, LLP, Chicago, Illinois, for individual appellants.
    J. William Koegel, Jr. and Elizabeth Johnson Dunaway of Steptoe & Johnson, LLP, Washington, D.C., and Glenn L. Smith and Tamara K Hackmann of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellant Allied Group, Inc.
    Harold N. Schneebeck of Brown, Win-ick, Graves, Gross, Baskerville & Schoe-nebaum, Des Moines, and Michael A. Reiter and Frederick R. Ball of Duane Morris, LLC, Chicago, Illinois, for appellant Nationwide Mutual Insurance Company.
    Brad J. Brady and Matthew L. Preston of Brady & O’Shea, P.C., Cedar Rapids, Thomas D. Waterman, Terry M. Giebel-stein, and Nathan Clark of Lane & Waterman, Davenport, Daniel E. Bacine and Leslie Molder of Barrack, Rodos & Bacine, Philadelphia, Pennsylvania, and Jason B. Adkins and David L. Kelston of Adkins, Kelston <& Zavec, P.C., Boston, Massachusetts, for appellee.
    Ray Johnson of Johnson Law Firm, West Des Moines, and F. Paul Bland, Jr. and Victoria W. Ni, Washington, D.C., for amici curiae Trial Lawyers for Public Justice and Association of Trial Lawyers of America.
    Bruce R. Pfaff of Bruce R. Pfaff & Associates, Ltd., Chicago, Illinois, Patrick C. Simek of Law Offices of Patrick C. Simek, Lubbock, Texas, and John M. Bick-el of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for amicus curiae American Board of Trial Advocates.
    David L. Baker of Riccolo & Baker, P.C., Cedar Rapids, for amicus curiae Iowa Trial Lawyers Association.
   LARSON, Justice.

The defendants appeal and the plaintiff cross-appeals from a district court ruling on the plaintiffs demand for a jury trial. The district court granted a jury trial as to one issue, but denied it as to another. The defendants were granted an interlocutory appeal, and the plaintiff cross-appealed. We affirm on the defendants’ appeal, reverse on the plaintiffs cross-appeal, and remand for further proceedings.

I. Facts and Prior Proceedings.

This plaintiff, representing shareholders of Allied Mutual Insurance Company (Mutual), sued various parties, including Allied Group, Inc. (Group), and several individuals for damages arising out of alleged mismanagement of Mutual’s financial affairs. According to the petition, Mutual conveyed to Group assets worth more than $900,000,000 for $126,000,000. Until 1985 Group was a totally dependent subsidiary of Mutual. However, in 1985 a transaction began a process that “would ultimately result in a role reversal between Mutual and Group.” The plaintiff contends this role reversal benefited the directors, Group, and Group’s shareholders at the expense of Mutual’s shareholders and policyholders.

The plaintiffs petition asserted both direct and derivative claims. Counts I through V are clearly derivative claims, as to which there is no right to a jury trial, and those counts are not involved in this appeal. Count VI incorporated by reference the factual allegations of the first five counts and asserted a class-action claim for “de facto” conversion by the defendants. Count VII is a class-action claim for breach of fiduciary duty. The defendants filed motions to dismiss, which the court sustained as to all eight counts. We reversed as to Counts I to VII in Rieff v. Evans, 630 N.W.2d 278, 295 (Iowa 2001) (Rieff I), and remanded the case to the district court.

Following the remand, the defendants filed a motion to strike the plaintiffs jury demand under Counts VI and VII. They argue first that these counts raise equitable issues, as to which the plaintiff has no right to a jury trial. They further argue that, even if those counts are at law, they present such complexity that any right to a jury trial must yield to the defendants’ right to due process. They base this argument on their interpretation of Weltzin v. Nail, 618 N.W.2d 293 (Iowa 2000). The district court denied the motion to strike the jury demand on Count VI, but sustained it as to Count VII.

II. The Complexity Issue.

The defendants contend the claims in this case are so complex they cannot competently be resolved by a jury, despite this constitutional assurance of jury trials:

The right of trial by jury shall remain inviolate; but the general assembly may authorize trial by a jury of a less number than twelve in inferior courts; but no person may be deprived of life, liberty, or property, without due process of law.

Iowa Const, art. I, § 9. A comparable right to a jury trial is found in the Seventh Amendment of the United States Constitution: “The right of trial by jury shall be preserved.... ”

We said in Rieff I that “[t]his appeal is from a case with many issues, parties, attorneys, claims, counts, and legal theories.” Rieff I, 630 N.W.2d at 282. The defendants portray an even more daunting picture of the ease:

In her 36-page, 104-paragraph Amended Petition, Plaintiff challenges in excess of ten separate, complex financial transactions that took place over an eight-year period between 1985 and 1993. These challenged transactions include a “pooling agreement” between Allied Mutual, Allied Group, and other affiliated organizations; administration of the pooling agreement; a leveraged employee stock ownership plan (ESOP); executive equity incentive plans; stock options; the formation and acquisition of various business entities; “corporate opportunities;” and restructuring. The various complex concepts foreign to lay people encompassed in these transactions include mutual insurance company governance issues, corporate debt, funding and initial public offerings, equity, premium to surplus and gross leverage ratios, expense ratios, loss ratios, combined ratios, underwriting, pooling and inter-company operating agreements, conflicts of interest, corporate restructuring, tender offers, return on premium, risk-based capital, and preferred versus common stock. As to each of the challenged transactions, Plaintiff seeks an accounting to determine the consideration exchanged between the parties.

The defendants add that, because the plaintiff seeks over $500,000,000 in damages, complex valuations at various times during an eight-year time period would be required. They estimate they alone have produced more than 100,000 pages of documents; the plaintiff has issued subpoenas to eight nonparty actuarial and accounting entities, and additional voluminous docu-merits will be produced. They estimate the trial will last at least twelve weeks. In view of these assertions, we assume, for purposes of this appeal, this is truly a “complex” case.

We first address the claim by the defendants that we have already recognized a complex-litigation exception in Weltzin in which we said:

[T]his court recognizes that in a shareholder’s derivative suit a judge is simply better equipped to hear the complicated corporation and duty claims....
... Moreover, allowing this type of complex case to be adjudicated by a jury may actually offend, Iowa’s constitutional mandate of due process under article I, section 9 [of the Iowa Constitution],

618 N.W.2d at 301-02 (citations omitted).

Weltzin did not, as the defendants urge, establish a general complexity exception to the constitutional right to a jury trial. In Weltzin we said, “[t]he derivative suit exists only in equity.” 618 N.W.2d at 297. The statement from Weltzin about complexity gives additional reasons why bench trials might be better than jury trials in derivative actions. This language merely supports what was already the rule: derivative actions are to be tried in equity. It was not necessary to the holding of the case and was therefore dictum. Although we reject the argument that Weltzin establishes a general complex-litigation exception to the constitutional right to a jury trial, the question remains whether we will, independently of the Weltzin language, adopt a complexity exception.

As one court has observed, the “practical considerations [presented in complex litigation] diminish in importance when they come in conflict with the constitutional right to a jury in civil cases.” In re U.S. Financial Securities Litigation, 609 F.2d 411, 416 (9th Cir.1979) (applying Seventh Amendment right to jury under Federal Constitution). Cases recognizing a complex-litigation exception to the right to a jury trial sometimes rely on this language in a footnote in Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970):

As our cases indicate, the “legal” nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply.

Ross, 396 U.S. at 538 n. 10, 90 S.Ct. at 738 n. 10, 24 L.Ed.2d at 736 n. 10 (emphasis added). In In re Financial Securities, 609 F.2d at 425-26, the court discussed the general criticism that has been levied against the Ross footnote and noted widespread refusal of courts to follow it. The court said:

While the Supreme Court has never specifically repudiated the third factor in the Ross footnote, it has never met with general acceptance by the courts. In the Ross decision itself, the court did not consider the practical abilities and limitations of juries. And, although the Supreme Court has considered the Seventh Amendment question in depth on at least five occasions since Ross, the abilities of juries have never been considered. The subsequent decisions have all relied upon the traditional historical test.

Id. (footnotes omitted).

We believe Financial Securities accurately assessed the Ross footnote. The court in Financial Securities said:

While it is unclear as to what was meant by the inclusion of the third factor [in Ross, “the practical abilities and limitations of juries”], we do not believe that it stated a rule of constitutional dimensions. After employing an historical test for almost 200 years, it is doubtful that the Supreme Court would attempt to make such a radical departure from its prior interpretation of a constitutional provision in a footnote.

In re U.S. Financial Securities, 609 F.2d at 425.

The Supreme Court’s great solicitude for jury trials is illustrated by this language in Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603, 611 (1935):

Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.

Of course, the footnote in Ross, which considered the United States Constitution’s Seventh Amendment, is not binding on us in our assessment of Iowa’s constitution. Nevertheless, we have considered these federal cases interpreting the Seventh Amendment with respect to a complexity exception, and we adopt the reasoning of cases such as In re Financial Securities in applying our own jury-trial constitutional provision.

The defendants have not demonstrated that, as a general rule, a judge may be expected to do a better job of trying the issues in a complex case. In fact, as the court said in Financial Securities:

The assumption that attorneys cannot develop and present complex cases to a jury underestimates the abilities of the bar, especially the experienced and capable counsel associated with the present litigation. Whether a case is tried to a jury or to a judge, the task of the attorney remains the same. The attorney must organize and assemble a complex mass of information into a form which is understandable to the uninitiated. In fact, one judge has suggested attorneys may do a better job of trying complex cases to a jury than to a judge.

In re U.S. Financial Securities, 609 F.2d at 427 (citing Patrick E. Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex. L.Rev. 47, 54-55 (1977)). Oversight by a judge is available in various ways, including summary judgments, directed verdicts, new trials, judgments notwithstanding the verdict, and orders for remit-titur and additur. In addition, no definitive criteria for boundaries are established to identify “simple,” “complex but not too complex,” and “too complex” for juries. See SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1127 n. 3 (Fed.Cir.1985). Based on these reasons and the weight of authority in other jurisdictions, we reject the defendants’ request for recognition of a “complex litigation” exception to the constitutional right to a trial by jury. We affirm on the defendants’ appeal.

III. The Cross-Appeal.

The plaintiff cross-appealed from the district court’s denial of a jury trial on Count VII entitled “Breach of Fiduciary Duty by the Individual Defendants,” and seeking “damages and other relief....”

In Riejf I we said Count VII stated a claim for breach of duties owed to the individual plaintiffs and distinguished these from duties owed to the corporation and, therefore, subject only to a derivative action. Rieff I, 630 N.W.2d at 294-95. The plaintiffs in Count VII assert direct damages to the plaintiffs recognizable in a direct action by them.

In Cunningham v. Kartridg Pak Co., 332 N.W.2d 881, 883 (Iowa 1983), we noted the general rule:

As a matter of general corporate law, shareholders have no claim for injuries to their corporation by third parties unless within the content of a derivative action.

However, there is

a well-recognized exception to the general rule: a shareholder has an individual cause of action if the harm to the corporation also damaged the shareholder in his capacity as an individual rather than as a shareholder.

Id.

We conclude the district court erred in denying a jury trial under Count VII because that count raised issues of direct, not derivative, liability. We therefore reverse on the cross-appeal.

AFFIRMED ON APPEAL, REVERSED ON CROSS-APPEAL, AND REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except CARTER, STREIT, and WIGGINS, JJ., who take no part.


author: CADY, Justice.

text:
    FARMLAND FOODS, INC., Appellee, v. DUBUQUE HUMAN RIGHTS COMMISSION, Appellant, and Samuel O. Taylor, Intervenor-Appellant.
    No. 02-0063.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      William G. Blum, Dubuque, for appellant.
    Dorothy A. O’Brien of O’Brien & Greve, P.L.C., Davenport, for intervenor-appel-lant.
    Michael R. Lied of Howard & Howard Attorneys, P.C., Peoria, Illinois, and Brendan T. Quann of O’Connor & Thomas, P.C., Dubuque, for appellee.
   CADY, Justice.

This employment case centers on a variety of complaints of discrimination by an employee of a meatpacking plant over the course of his employment. A local human rights commission awarded damages. The district court reversed the decision of the human rights commission on judicial review and dismissed the complaint. On appeal, the court of appeals reversed the decision of the district court. On further review, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

Samuel Taylor (Taylor) began working as a meat processor in a meatpacking plant located in Dubuque in 1988. He was twenty-five years old when he began his employment. The plant was owned by FDL Foods, Inc. In 1996, Farmland Foods, Inc. (Farmland) purchased the plant. Taylor continued to work at the plant after the purchase with no interruption in service. The plant slaughtered hogs and processed pork. The working conditions were noisy and cold, and many jobs were gruesome and bloody. The work was fast-paced, repetitious, generally stressful, and sometimes unstimulating. The continuous flow of the product along production fines required a coordinated, fast-paced effort by workers. Worker absenteeism was a frequent problem at the plant, especially in the “hog kill” department. This meant employees were often moved to other jobs to cover understaffed areas.

A union represented the employees. Many employment decisions affecting workers were governed by a collective-bargaining agreement, while other decisions were within the discretion of management and supervisors. Generally, the plant recognized seniority in making job assignments, and qualified employees with seniority could request to move to open positions.

Over the course of his employment, Taylor, who is black, became dissatisfied with shift and work assignments. He also experienced various confrontations and problems with supervisors, most notably Dick Sherman (Sherman). Sherman is white. The problems between Sherman and Taylor form the core facts of the litigation.

Each employee at the plant was assigned to a department, referred to as their “home base,” and to a specific shift at the time employment began. Taylor was assigned to the “smoked meats” department, second shift. He was the only black man assigned to this department. Sherman was a supervisor in the smoked meats department.

One problem Taylor experienced during his employment at the plant was his inability to move from second shift to first shift. As early as 1984, Taylor was denied various requests to change shifts while other workers in the smoked meats department were able to move. Another complaint was based on Sherman’s denial of Taylor’s request to leave work early after he had completed his regularly assigned work, as other employees were able to do on occasion. As a result, Taylor was required to complete his shift. These incidents primarily occurred before or during 1989 or 1990. Another complaint occurred in 1990 when Taylor was temporarily assigned to a boxing job in the “ham wrap” department during the vacation of another employee and was told by his supervisor he needed to work faster. Although Sherman was not Taylor’s supervisor that day, he intervened and threatened to write a disciplinary memo concerning the incident. No memo, however, appeared in Taylor’s work records. Taylor filed a grievance over the incident, which was denied.

During the term of his employment, Taylor filed numerous grievances involving Sherman’s actions. Taylor did not have significant problems with other supervisors during his employment. One of the grievances related to Sherman’s conduct resulted in a minor change to departmental procedure. The rest were denied.

Taylor felt Sherman frequently singled him out for discipline and was overly critical of his work. One example involved a problem Taylor and other production-fine employees encountered in placing nets around hams during a period of several months. Although the problem ultimately was attributed to the incorrect size of the nets, Sherman frequently criticized the workers on the fine in a loud voice, and was particularly critical of Taylor for failing to meet production standards. Taylor, however, was never formally disciplined.

Taylor also complained that Sherman generally watched over him more than he watched the other employees and treated him differently than white employees. On one occasion, Taylor and three other employees were working when the machine they were using broke down. As the employees were waiting for it to be repaired, Sherman assigned Taylor and another employee to perform other jobs, but did not assign the other two employees to another job. At times Sherman criticized Taylor for using the restroom outside regular break time. Taylor also felt Sherman singled him out for returning to the production line late from breaks. One white employee occasionally returned a minute or so late from break with no comment from Sherman. None of the incidents resulted in any form of discipline.

After Farmland purchased the Dubuque plant in 1996, the smoked meats department was substantially reduced in size due to reduced production. Consequently, most of the smoked meats employees, including Taylor, were laid off and reassigned to other departments. When a worker was laid off because of the lack of work in the assigned department, the company reassigned the worker to a different department, and the worker was then considered to be a temporary worker in that department until such time as they could return to their home base. Taylor was reassigned to the hog kill department. Most of the jobs in the hog kill department were physically demanding, messy, and unpleasant. Sherman did not work in the hog kill department.

After Taylor was assigned to the hog kill department, he complained about his job assignments and requested a different job on several occasions. His supervisor denied the requests. He was also formally disciplined for leaving his job without permission on one occasion to go to the superintendent to complain about the manner he was being treated by supervisors. The disciplinary document was later removed from the file, and Taylor was later given the job he wanted.

Taylor was recalled to the smoked meats department in the fall of 1997 and was again under Sherman’s supervision. He felt Sherman badgered him about working too slowly after he returned. Taylor was unfamiliar with the job he was assigned, and Sherman wanted him to work faster. Sherman talked to Taylor more than once a week about the need to work faster. Taylor was subsequently laid off, and reassigned to the hog kill department in December 1997. He was eventually given the vacuuming job he requested in the hog kill department, and worked at this job until early April 1998.

In the spring of 1998, Taylor began to hear that Farmland had called other employees back to the smoked meats department. He felt he should also be transferred back to the smoked meats department and was chided by coworkers for not being called back.

On April 6, 1998, his supervisor assigned another employee to do Taylor’s vacuuming job after the employee reported to work with a light-duty restriction imposed by a doctor. The employee was given Taylor’s vacuuming job, and Taylor was assigned to the “pans” job. Taylor was unhappy about the move. When he reported to work the next day, April 7, his supervisor again assigned him to do the pans job. Taylor objected and demanded to meet with another supervisor, who was not immediately available to talk to Taylor. He then cleaned out his locker and quit.

Taylor believed many of the problems he experienced during his fifteen-year employment were racially motivated. He also believed the actions of Sherman were dis-criminatorily motivated. However, Sherman never used any racially derogatory language toward Taylor, and no employee ever heard Sherman use such language in talking to other employees. At unspecified times during his employment, Taylor observed racial graffiti on the bathroom walls and was called racially derogatory names by two employees.

Shortly after Farmland purchased the plant, the new plant manager conducted an investigation into Taylor’s complaints of discrimination at Taylor’s request. The manager concluded that no racial discrimination had taken place in the plant. Instead, the manager concluded that Sherman and Taylor had a personality conflict. Sherman was a demanding supervisor, and Taylor was not the type of person to back down from a confrontation. Two other employees felt Sherman picked on Taylor at times because of his race, but were unable to identify a reason to support their belief other than Taylor generally seemed to be the target of Sherman’s supervisory conduct.

On April 28, 1998, Taylor filed a complaint of discrimination against Farmland with the Dubuque Human Rights Commission. On January 11, 1999, an administrative law judge issued a finding of probable cause. Taylor then amended his complaint to allege racial discrimination, racially hostile work environment, constructive discharge, and unlawful retaliation.

Following a hearing, an administrative law judge issued recommended findings of fact and conclusions of law. The judge believed the evidence did not support the claims and recommended the complaint be dismissed. On April 9, 2001, the human rights commission adopted the findings of fact of the administrative judge, but determined Taylor established each claim. It awarded Taylor $22,292 in lost wages and $50,000 in emotional distress damages, in addition to attorney fees and costs.

On judicial review, the district court reversed the decision of the human rights commission and dismissed the complaint. The district court found no substantial evidence to support any of the four claims.

Taylor filed an appeal, and we transferred the case to the court of appeals. On appeal Taylor claimed the record contained substantial evidence of racial discrimination and a racially hostile work environment. Taylor did not appeal from the adverse rulings by the district court on his claims of constructive discharge and unlawful retaliation.

The court of appeals reversed the district court. It found substantial evidence that Taylor suffered an adverse employment action to support the claim of racial discrimination. It did not address the hostile-work-environment claim. It also did not consider numerous defenses raised by Farmland. We granted further review.

II. Scope of Review.

Our review is for errors at law. Iowa Code § 17A.19(8) (1997). The findings of the agency are binding if supported by substantial evidence. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000).

III. Timeliness of Complaint.

We first address the issue of the timeliness of the complaint. Farmland consistently raised this issue at every relevant stage of the case.

The Dubuque human rights ordinance governing this case requires a complaint to be filed “within one hundred and eighty (180) days after the alleged discriminatory or unfair practice occurred.” Dubuque City Code §• 27-113. This time period is consistent with Iowa Code section 216.15(12). Taylor filed his complaint on April 28, 1998. Clearly, most of the evidence presented in the case concerned events that predated the relevant 180-day time period. Thus, we must consider if Taylor’s claims were timely filed. For the purposes of this appeal, the only claims for consideration are racial discrimination and hostile work environment.

We have previously recognized and applied the “continuing violation” doctrine to resolve statute of limitations claims in discrimination actions. Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Comm’n, 453 N.W.2d 512, 527 (Iowa 1990). Generally, if a violation is continuing, the period of limitation does not begin to run on a claim at the time the unlawful act first occurs, but the claim is considered to be filed within the period of limitation if some unlawful acts occurred within the limitations period. Id. However, this doctrine applies differently to claims of discrete discriminatory acts than to claims of hostile work environment. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-21, 122 S.Ct. 2061, 2070-76, 153 L.Ed.2d 106, 120-27 (2002).

Each discrete discriminatory act or event is separately actionable, and a claim based on discrimination must be filed within the relevant limitation period after the act occurred. Id. at 114, 122 S.Ct. at 2073, 153 L.Ed.2d at 122. This is true even when the discrete discriminatory act relates to other acts alleged in a timely filed complaint. Id. at 113, 122 S.Ct. at 2072, 153 L.Ed.2d at 122. However,

[t]he existence of past acts and the employee’s prior knowledge of their occurrence ... does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.

Id.

On the other hand, claims of hostile work environment are fundamentally different. Unlike discrete acts of discrimination, they involve repeated conduct and are based on the cumulative impact of separate acts. Id. at 115, 122 S.Ct. at 2073, 153 L.Ed.2d at 123. Under such a claim, it makes no difference that some of the component acts fall outside the period of limitation. As long as “an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. at 117, 122 S.Ct. at 2074, 153 L.Ed.2d at 124. It is in this context that we consider the sufficiency of evidence to support each claim.

IV. The Racial Discrimination Claim.

An essential element of a claim for racial discrimination in employment is that the claimant suffers an adverse employment action. See Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 633, 638 (Iowa 1998). Conduct constituting a materially adverse employment action embraces a wide variety of facts. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 862-63 (Iowa 2001). It includes subtle conduct such as depriving an employee of the opportunity to advance, as well as more obvious actions such as “ ‘ “disciplinary demotion, termination, unjustified evaluations and reports, loss of normal work assignments, and extension of probationary period.” ’ ” Id. at 863 (citation omitted). Internal transfers from department to department can also constitute adverse employment action when “ ‘accompanied by a negative change in the terms and conditions of employment,’ ” or when the transfers substantially affect future career prospects. Terry v. Ashcroft, 336 F.3d 128, 144 (2d Cir.2003) (citation omitted); accord Channon, 629 N.W.2d at 864-65. However, internal transfers involving “ ‘minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action.’ ” Spears v. Missouri Dep’t of Corrections & Human Res., 210 F.3d 850, 853 (8th Cir.2000) (citation omitted). In other words, minor changes in working conditions that only amount to an inconvenience cannot support discrimination. Id. Our first task in this case is to examine the evidence concerning the six months prior to the time that Taylor filed his claim to determine if substantial evidence exists to support a finding that a discriminatory act occurred during this time period. If not, there is no actionable claim for racial discrimination.

Taylor presented evidence of four discrete events that took place during the relevant time period prior to the filing of his complaint. The first occurred in the fall of 1997 when Taylor was recalled to the smoked meats department for a period of time. After being recalled, he was criticized by his supervisor, Sherman, for the slow pace of his work. Taylor acknowledged that his work was slow and that Sherman was motivated to increase production in the department. Yet, Taylor felt the criticism was unjustified because he was unfamiliar with the job he had been assigned. We do not believe occasional complaints voiced by a supervisor about employee performance standards constitute substantial evidence of a materially adverse employment action. Such a complaint alone cannot support a claim for racial discrimination.

The second event occurred in December 1997 when Taylor was laid off from the smoked meats department and assigned to the hog kill department. He was initially assigned various jobs he disliked, but soon requested and received the vacuuming job that he worked until April 6, 1998. We do not believe these circumstances amounted to substantial evidence of an adverse employment action. The changes experienced by the transfer and job assignments were a normal part of the overall employment, and did not support a claim for racial discrimination. Moreover, an employment action is not adverse merely because the employee does not like it or disagrees with it. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997).

The third event occurred on April 6 and 7, 1998, when Taylor was removed from his vacuuming job and assigned a less desirable job to accommodate a worker with a lifting restriction. Like the other circumstances, these events did not constitute substantial evidence of a materially adverse employment action, but instead constituted a minor inconvenience. Moreover, there was no evidence Taylor lost money or benefits or that he would be unable to transfer back to his job at a later time. None of the actions cited by Taylor caused any material employment disadvantage.

The last event concerned Farmland’s decision to recall all home base employees of the smoked meats department except Taylor. Additionally, Taylor believed that two employees from other departments had been transferred to the smoked meats department on a temporary basis. Taylor felt he was also entitled to be recalled. However, the evidence to support his belief that Farmland had transferred workers with less seniority than him was speculative. Taylor never observed any temporary or less senior employees working in the smoked meats department, and a coworker in the smoked meats department at the time, who was also a union steward, could not recall if any temporary workers were brought in to the department. Moreover, the human resources manager for Farmland testified that the company records showed no worker with less seniority than Taylor that was called back to the smoked meats department. Taylor also testified he complained to the union president about the recall, but there was no evidence that a grievance was ever filed. The record simply does not contain substantial evidence that the failure to recall Taylor to the smoked meats department constituted an adverse employment action. It did not result in material employment disadvantage. Additionally, the commission never made such a finding.

It is also important to recognize that the essence of the complaints of discrimination by Taylor “strike at the very heart of an employer’s business judgment and expertise because they challenge an employer’s ability to allocate its [resources] in response to shifting and competing market priorities.” Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1244 (11th Cir.2001). This supports the position that work assignment claims that do not affect an employee’s permanent job title or classification will not normally be actionable as adverse. Id.

Accordingly, we conclude Taylor failed to file his discrimination claim in a timely manner. There is no substantial evidence of a discrete act of discrimination within 180 days prior to the time the complaint was filed. Consequently, we do not consider the other evidence presented by Taylor to support his acts of discrimination as the commission did. Taylor cannot recover for claimed acts of discrimination outside the limitation period.

Y. The Hostile Work Environment Claim.

Hostile work environment claims are actionable “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295, 301 (1993) (citation omitted). This claim recognizes workplace discrimination affects the full spectrum of disparate treatment in the workplace and targets discrimination that requires employees to work in a discriminatorily abusive or hostile workplace. Id. Such claims can be based on racial harassment, as was the claim brought by Taylor in this case.

Before examining the sufficiency of the evidence to support the claim, we must address Farmland’s assertion that the hostile-work-environment claim was untimely.' The four incidents we considered in examining the discrimination claim also make up a portion of the hostile-work-environment claim. Although these incidents do not give rise to adverse employment action, they constitute acts contributing to the hostile work environment claim. We have previously determined that these acts occurred within the 180-day limitation period. Accordingly, the hostile-work-environment claim was timely filed, and all the allegations of a hostile work environment made by Taylor throughout his employment are properly considered.

To establish a hostile work environment, the plaintiff must show: (1) he or she belongs to a protected group; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; and (4) the harassment affected a term, condition, or privilege of employment. See Beard v. Flying J, Inc., 266 F.3d 792, 797 (8th Cir.2001). Additionally, if the harassment is perpetrated by a nonsupervisory employee, the plaintiff must show the employer “knew or should have known of the harassment and failed to take proper remedial action.” Stuart v. Gen. Motors Corp., 217 F.3d 621, 631 (8th Cir.2000). When a supervisor perpetrates the harassment, but no tangible employment action occurred, the employer may assert the Faragher-Ellerth affirmative defense to avoid liability. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662, 689 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633, 655 (1998).

The harassment addressed in the elements of the claim refers, of course, to hostile-work-environment harassment that occurs “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ ... ‘sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.’ ” Harris, 510 U.S. at 21, 114 S.Ct. at 370, 126 L.Ed.2d at 301 (citation omitted). To establish whether harassment was severe or pervasive, the plaintiff must not only show he or she subjectively perceived the conduct as abusive, but that a reasonable person would also find the conduct to be abusive or hostile. Id, at 21-22, 114 S.Ct. at 370, 126 L.Ed.2d at 302. The objective determination considers all the circumstances, including: (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct was physically threatening or humiliating or whether it was merely offensive, and (4) whether the conduct unreasonably interfered with the employee’s job performance. Id. at 23, 114 S.Ct. at 371, 126 L.Ed.2d at 302-03. These factors and circumstances must disclose that the conduct was severe enough to amount to an alteration of the terms or conditions of employment. Faragher, 524 U.S. at 788, 118 S.Ct. at 2283-84, 141 L.Ed.2d at 676-77. Thus, hostile-work-environment claims by their nature involve ongoing and repeated conduct, not isolated events. Morgan, 536 U.S. at 115, 122 S.Ct. at 2073, 153 L.Ed.2d at 123.

The discriminatory intimidation, ridicule, and insult must be motivated by a worker’s membership in a protected group. See Harris, 510 U.S. at 21-22, 114 S.Ct. at 370-71, 126 L.Ed.2d at 301-02. The use of racial epithets may not only support an inference of discrimination based on race, but may also support an inference that racial animus motivated other conduct. Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 800-01 (8th Cir.2003) (relevant conduct need not be stamped with overt discrimination if it is part of a course of conduct tied to evidence of discriminatory animus).

We find sufficient evidence that Taylor subjectively felt harassed. Thus, we turn to consider the sufficiency of the evidence under an objective inquiry using the factors we have identified.

The commission found that the intensity and longevity of the repeated criticism and scrutiny by Sherman, as well as Farmland’s unwillingness to alleviate the problem, supported the finding of a hostile work environment. It also found the undesirable job assignments given to Taylor supported the hostile work environment claim.

We begin our review of the evidence by considering the nature of the conduct identified by Taylor to be racial harassment and the level or degree of its offensiveness. In doing so, we observe that the conduct by Sherman and other supervisors did not include the use of any racially derogatory statements. Instead, most of the conduct consisted of criticism and close supervision of Taylor’s activities. Yet, occasional criticism of an employee’s work performance by a supervisor, absent references or another nexus to race or national origin, does not amount to racial harassment. See Hannoon v. Fawn Eng’g Corp., 324 F.3d 1041, 1047-48 (8th Cir.2003). Moreover, antipathy between a supervisor and a black employee, absent evidence of racial discrimination, is not enough to establish a hostile work environment. See Cooper v. John D. Brush & Co., 242 F.Supp.2d 261, 270 (W.D.N.Y.2003). We also observe that there was no evidence of physical intimidation. There was also no evidence of racial harassment by supervisors and coworkers towards other employees, other than the general claim of graffiti in the employee restroom. This type of evidence, however, was nonspecific and not attributable to any time period.

Although Taylor earnestly believed Sherman was a constant source of harassment, the actual incidents claimed by Taylor to form the basis of the hostile work environment were sporadic and often separated by long gaps in time. Sherman’s criticism of Taylor was also directed at production standards or work ethics. Taylor testified Sherman was the only supervisor or coworker who harassed him, but Taylor did not work under Sherman’s supervision for any prolonged periods of time after Farmland took over the plant and reduced the smoked meats department.

Taylor also used the various job assignments to support the hostile-work-environment claim. However, there is no evidence that any job assignment was predicated on racial enmity or that Sherman had any control or input into Taylor’s assignments in the hog kill department. Many of the jobs throughout the plant were undesirable, but they were regular jobs performed by other employees in the plant as well, and Taylor’s seniority was frequently insufficient for him to avoid assignments to undesirable jobs.

We recognize that job transfers or assignments that give rise to adverse employment action can be a part of a hostile-work-environment claim. However, the transfers experienced by Taylor in this case were the result of the layoffs and did not affect his standing or classification in the plant. They were also temporary. Moreover, the specific work assignments related to staffing needs of the plant and the employer’s judgment.

Considering all the evidence submitted by Taylor to support the claim of a hostile work environment, we conclude it was insufficient to support the conclusion of the commission. The conduct identified by Taylor to support his claim was not severe or pervasive, and did not permeate the work place environment with discriminatory intimidation, derision, and abuse. It was rather sporadic conduct, and often related more to the work required to be performed than the conduct of the employer. Taylor worked in an industry known for its tough jobs and unpleasant working environment, and many of his complaints related to the unpleasant nature of the jobs inherent in the work performed by the industry.

It is also important to recognize that Taylor’s complaints normally subsided when he was assigned the jobs he did not find objectionable, and the entirety of his complaints were sporadic over the fifteen years of his employment. The specific criticism and scrutiny Taylor experienced from time to time was neither severe nor pervasive, and it did not impact the terms and conditions of his employment. See Freeman v. Kansas, 128 F.Supp.2d 1311, 1320 (D.Kan.2001) (a supervisor may scold and yell at an employee without violating Title VII). We do not believe the occasional unpleasant treatment Taylor felt he received at the hands of his employer in this case was the type of conduct sought to be actionable under a hostile-work-environment claim. See Harris, 510 U.S. at 21, 114 S.Ct. at 370, 126 L.Ed.2d at 302 (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.”).

We acknowledge Taylor felt Sherman picked on him from time to time and that his feelings were generally confirmed by the beliefs of some of his coworkers. However, there is no evidence that Sherman or any other supervisor ever used any racially derogatory language and the conduct used to support the claim was neither severe nor pervasive. The evidence as a whole did not, as a matter of law, support a claim of a hostile work environment.

VI. Conclusion.

We conclude the racial discrimination claim was not timely filed and that there was insufficient evidence to support the claim of a racially hostile work environment. The other claims were inadequately raised on appeal. We vacate the decision of the court of appeals and affirm the judgment of the district court.

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

All justices concur except WIGGINS, J., who takes no part.

      . The basic elements of a prima facie case of discrimination in employment are: (1) plaintiff is a member of a protected class; (2) plaintiff was performing the work satisfactorily; and (3) plaintiff suffered an adverse employment action. See Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 633, 638 (Iowa 1998). Under the McDonnell Douglas burden shifting analysis, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120 (2000); accord Casey's Gen. Stores,

        Inc. v. Blackford, 661 N.W.2d 515, 519-20 (Iowa 2003). It is not necessary to follow the McDonnell Douglas analysis once a case has been fully tried because the burden ultimately rests with the plaintiff to establish the claim and show the adverse employment action resulted from discrimination.

      . If a plaintiff establishes a supervisor effected a tangible work action against the plaintiff, the defendant employer or corporate entity is liable for the harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662, 688-89 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633, 655 (1998). However, if the plaintiff fails to establish that the supervisor took a tangible employment action, the employer may assert the Faragher-Ellerth affirmative defense. Faragher, 524 U.S. at 807, 118 S.Ct. at 2293, 141 L.Ed.2d at 689; Ellerth, 524 U.S. at 765, 118 S.Ct. at 2270, 141 L.Ed.2d at 655. The employer establishes this defense by showing it: (1) "exercised reasonable care to prevent and correct promptly any ... harassing behavior,” and (2) "that the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807, 118 S.Ct. at 2293, 141 L.Ed.2d at 689; Ellerth, 524 U.S. at 765, 118 S.Ct. at 2270, 141 L.Ed.2d at 655. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268, 141 L.Ed.2d at 652-53.


text:
    STATE of Iowa, Appellee, v. Heather Marie BEGEY, Appellant.
    No. 02-0200.
    Supreme Court of Iowa.
    Dec. 17, 2003.

      Kent A. Simmons, Davenport, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Richard R. Phillips, County Attorney, and Alan R. Ostergren, Assistant County Attorney, for appellee.
   LARSON, Justice.

This defendant, Heather Begey, was convicted and sentenced for homicide by vehicle under Iowa Code section 707.6A(2)(a) (2001). The court of appeals, on a divided vote, affirmed her conviction, and we granted further review. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for retrial.

I. Facts and Prior Proceedings.

Begey’s mother, Monica Sissel, and Monica’s husband, Jay Sissel (the victim in this case), were in the midst of a divorce proceeding. A Ford Taurus, jointly owned by the couple and in Jay Sissel’s possession, was one item in dispute. Begey’s mother allegedly told Begey that if she would retrieve the car she could keep it. Begey went to Sissel’s home and found the car running with one of the rear doors open. She entered the open door and climbed over the seat to get into the driving position. In doing so, she accidentally sounded the horn. Sissel came running out of the house, yelling at her. Begey started to roll out of the driveway. Sissel put his hands on the hood of the car and eventually ended up on the hood. There is a dispute in the testimony about whether Sissel climbed on the hood or was “propelled,” as one witness put it, onto the hood by the forward, motion of the car.

A man in his driveway testified he saw the car go by, with Sissel on the hood yelling profanities and demanding that Be-gey stop the car. Begey testified that she kept driving because she wanted someone to see what was happening and call the police or come to her assistance. She knew the victim had a collection of weapons, and in fact, a loaded gun was later found under the front seat of the car. Begey drove several blocks with the victim on the hood. Eventually, he fell off the vehicle, back pedaled a few times, and hit his head on the concrete. He died of his injuries, and Begey was charged with second-degree murder and homicide by vehicle. The jury found her guilty of homicide by vehicle and involuntary manslaughter. The court merged the two convictions and sentenced Begey to a term not to exceed ten years on the homicide-by-vehicle conviction.

II. The Statute.

Iowa Code section 707.6A defines one of the alternatives of committing homicide by motor vehicle:

2. A person commits a class “C” felony when the person unintentionally causes the death of another by any of the following means:
a. Driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property, in violation of section 321.277.

III. The Issues.

Begey contends her trial attorney was ineffective for failing to challenge the sufficiency of the evidence of recklessness and proximate cause and failing to pursue adequately a defense of justification. She also contends that the court erred in denying her an opportunity to present evidence on her defense of justification.

IV.Ineffective Assistance of Counsel — Recklessness Instruction.

Ineffective-assistance-of-counsel claims are reviewed de novo. Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989). If we find ineffective assistance, a defendant’s failure to preserve error in the trial court may be excused. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). In order to establish ineffective assistance, the defendant must show that her trial counsel failed to perform an essential duty, and this failure prejudiced her. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Both elements must be shown by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

To meet the first element of the Strickland test, counsel’s performance is measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. In order to satisfy the prejudice element, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

A. Sufficiency of the evidence. Begey attacks the sufficiency of the evidence on two of the elements of homicide by motor vehicle: recklessness and proximate cause. The remedy she seeks is a reversal and remand for dismissal of the case.

1. Begey first claims her trial counsel was ineffective for failing to attack the sufficiency of the evidence of recklessness, an element of homicide by motor vehicle. See Iowa Code § 707.6A(2)(«). The evidence of recklessness was substantial. There was evidence that Begey’s mother offered to give the car to anyone who could get possession of it because she had been unsuccessful in her own attempts to get it. Begey had a friend drop her off two blocks from the victim’s home. There was evidence that, while Sissel was on the hood of the vehicle, Begey drove at speeds in excess of twenty-five miles per hour, the posted speed limit. One witness testified that the car was “flying.” Witnesses testified that she actually increased her speed with the victim on the hood and that she slammed on the brakes, throwing the victim off the car hood. While the defendant disputes much of this evidence, the jury was free to accept the State’s version. The jury could have found that the defendant’s continued driving with the victim on the hood was not to avoid harm to herself, as she claimed, but to get him off of the car so she could retain possession of it under her arrangement with her mother.

We conclude that, even if Begey’s counsel were ineffective in failing to move for judgment of acquittal on the sufficiency of the evidence of recklessness, she suffered no prejudice. There is no reasonable probability that, if such a challenge had been made by her trial counsel, the result would have been different. Because we find there is no reasonable probability of a different result, it is not necessary to discuss the first element of the Strickland test. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699 (“If it is easier to dispose of ineffectiveness claims on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”).

2. The defendant also claims her attorney should have argued that there was insufficient evidence to show that her driving was the proximate cause of the victim’s death, contending that “Sis-sel’s death resulted from his decision to step off the hood of the car while it was still in motion.”

A defendant can be relieved of criminal responsibility if an intervening act breaks the chain of causal connection between the defendant’s actions and the victim’s death. However, for an intervening act to relieve a defendant of criminal responsibility for homicide, the intervening act must be the sole proximate cause of death.

State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000) (citations omitted).

Even assuming the victim’s act was an intervening cause of his death, it was not the sole proximate cause because Begey played a significant role in the event. Under Garcia the victim’s actions could not be the sole proximate cause of his death. We reject the argument that Begey’s counsel was ineffective for failing to challenge the proof of proximate cause.

3. In attacking the sufficiency of the evidence of recklessness and proximate cause, Begey seeks to have the case reversed and remanded for dismissal. We reject her sufficiency-of-the-evidence arguments, and proceed to discuss the issues under which she seeks a new trial.

B. The recklessness instruction. Homicide by vehicle requires proof of recklessness. Iowa Code § 707.6A(2)(u). Begey contends her attorney was ineffective in failing to object to the court’s definition of recklessness. The court, in Instruction No. 29, informed the jury:

A person is “reckless” or acts “recklessly” when she willfully disregards the safety of persons or property. It is more than a lack of reasonable care which may cause unintentional injury. Recklessness is conduct which is consciously done with willful disregard of the consequences, and a person knows or should know a risk of harm to another or to property is created. Though recldessness is willful, it is not intentional in the sense that harm is intended to result.

This instruction follows verbatim our uniform instruction in effect at the time this case was tried. See I Iowa Crim. Jury Instruction 200.20 (1988). The defendant contends this definition is inadequate because it failed to include this requirement:

[F]or recklessness to exist the act must be fraught with a high degree of danger. In addition the danger must be so obvious from the facts that the actor knows or should reasonably foresee that harm will probably — that is, more likely than not — flow from the act....

This language is based on State v. Sutton, 636 N.W.2d 107, 111 (Iowa 2001) (quoting State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)). Begey claims these cases effected a change in our law regarding recklessness and made our uniform instruction invalid.

We note, however, that neither Sutton nor Torres criticized the uniform instruction as it then existed and as it remained in effect at the time of Begey’s trial. Nor did either of these cases suggest it would be reversible error not to include this language. In any event, we need not address the defendant’s claim of ineffective assistance with respect to the court’s recklessness instruction because, for the reasons later discussed, we hold the defendant is entitled to a new trial. We assume the court on retrial will instruct the jury based on our present uniform instruction, which now has been modified to include the language of Sutton and Torres. See I Iowa Crim. Jury Instruction 200.20 (2002).

V. The Justification Defense.

Begey contends her trial attorney was ineffective in not making an offer of proof during Begey’s testimony on her justification defense. She also contends, and we agree, the trial court erred in excluding evidence bearing on her claim of justification.

Under Iowa Code section 704.3,

[a] person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.

Begey’s attorney on appeal candidly states “The record [on justification] is somewhat confusing and probably inadequate.” Be-gey’s trial counsel did not file a notice of self-defense as provided by Iowa Rule of Criminal Procedure 2.11(ll)(c) (notice to be filed within time provided for pretrial motions, unless time extended by court). The State, however, has not objected on that ground. In fact, the court instructed the jury on justification, apparently sua sponte. Moreover, the prosecutor apparently considered the defense to be in the case because he argued at length that the jury should reject the defense. Although the defendant did not file a pretrial notice of justification defense, both parties and the court treated the issue as if it was a part of the case, and we do so as well.

A defendant has a fundamental right to present a defense.

The right to present a defense is so fundamental and essential to a fair trial that the Supreme Court has accorded it the status of an incorporated right in the due process clause of the Fourteenth Amendment[.]

State v. Fox, 491 N.W.2d 527, 531 (Iowa 1992) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967)). In this case, an eyewitness had testified in a deposition about an earlier incident involving Begey’s mother and Sissel in which Sissel jumped onto her mother’s car and grabbed her by the neck. This witness stated that Begey was nearby and likely observed the event. The court sustained the State’s objection to the proposed use of this deposition testimony on the ground it was improper character evidence. Begey’s attorney made an offer of proof by submitting a portion of the deposition in which the witness related the event. This testimony was never presented to the jury.

Begey was asked during her testimony about this prior event, but the court sustained the State’s objection on the same ground: it was improper character evidence. Begey’s attorney did not make an offer of proof. Begey contends her trial attorney was ineffective in failing to make an offer of proof. However, we need not decide the ineffective-assistance claim because we hold it was error for the court to sustain the objections to the testimony of Begey and her witness concerning the earlier event. In respect to evidence of character, self-defense is subject to a unique rule. We have said:

All persons, independently of their character or reputation, are under the equal protection of the law. A homicide victim’s prior violent or turbulent character or reputation is ordinarily immaterial and furnishes another no excuse to become his or her private executioner. Thus where the accused denies the killing or asserts it was unintentional, evidence of the deceased’s character is inadmissible.
But an exception to this general rule applies where the accused asserts he or she acted in self-defense and the slightest supporting evidence is introduced. Then the violent, quarrelsome, dangerous or turbulent character of the deceased may be shown, both by evidence of his or her reputation in that respect and by witnesses who can testify from an actual knowledge of the victim’s character.

State v. Jacoby, 260 N.W.2d 828, 837 (Iowa 1977) (citations omitted); accord State v. Pletka, 310 N.W.2d 525, 528 (Iowa 1981).

The burden of proof of this defense is on the State, which must prove a lack of justification by proof beyond a reasonable doubt. See State v. Dunson, 433 N.W.2d 676, 677 (Iowa 1988). The defendant testified that, if she slowed down enough for Sissel to get a hand free, he might have been able to inflict harm on her. She knew he had guns. She testified she was afraid to stop the car in order to flee. She testified that the victim “has a large build; and he was angry. The thing that I remember was just a vein in his forehead when he was on the hood.” She testified that she did not stop the vehicle because “it just didn’t feel safe to me.... I felt that there would be a very large risk to me and my safety.” While the defendant’s evidence on self-defense is not compelling, we have said that, if an accused asserts self-defense and “the slightest supporting evidence is introduced,” the character of the victim may properly be the subject of inquiry. Jacoby, 260 N.W.2d at 837.

Here, the court correctly defined the defense of justification and correctly informed the jury that the State must prove the defendant did not act with justification. The court further set out in its instructions the grounds that would make the defense unavailable. Under Iowa Code section 704.6:

The defense of justification is not available to the following:
2. One who initially provokes the use of force against oneself, with the intent to use such force as an excuse to inflict injury on the assailant.
3. One who initially provokes the use of force against oneself by one’s unlawful acts, unless:
a. Such force is grossly disproportionate to the provocation, and is so great that the person reasonably believes that the person is in imminent danger of death or serious injury or
b. The person withdraws from physical contact with the other and indicates clearly to the other that the person desires to terminate the conflict but the other continues or resumes the use of force.

Begey’s taking of the car was unquestionably the impetus for the events that followed. However, that act, which began as a relatively nonviolent act, is not necessarily a sufficient provocation to deprive Begey of the defense. See Dunson, 433 N.W.2d at 678 (defendant’s striking victim with belt not necessarily sufficient provocation to deprive defendant of self-defense instruction); State v. Davis, 209 Iowa 524, 528, 228 N.W. 37, 39 (1929) (provocation by making defamatory comments about the victim’s daughter not sufficient to deprive defendant of self-defense claim).

Here, the State and the court observed that Begey did not expressly testify that she was afraid of Sissel. However, a jury could conclude that from her testimony. The prosecution argued at length about why the jury should not find justification. Yet, the defendant was not allowed to introduce evidence to support such a defense. The record in this case was, as Begey notes on appeal, confusing. We believe it is clear, however, that to deny Begey’s introduction of evidence of the prior acts of the victim on the ground it was inadmissible character evidence was error.

We conclude the defendant is not entitled to a remand for dismissal on her claim of insufficiency of the evidence. She is, however, entitled to a new trial on the ground the court erroneously denied her the opportunity to develop her claim of self-defense.

DECISION OF COURT OF APPEALS VACATED, JUDGMENT OF DISTRICT COURT REVERSED, CASE REMANDED FOR RETRIAL.

All justices concur except WIGGINS, J., who takes no part.