Iowa seeks dismissal of Glenwood whistleblower lawsuit, now in its fourth year

A whistleblower lawsuit related to human experiments at the state-run Glenwood Resource Center is entering its fourth year of litigation with a judge now considering the state’s arguments for dismissal.

In 2020, several former employees of Glenwood sued the state and several administrators who oversaw the western Iowa care facility for individuals with disabilities. The lawsuit was based on claims of wrongful termination and violations of the state’s whistleblower-protection law.

The six plaintiffs, including Dr. John Heffron and Dr. Michael Langenfeld, have claimed they faced retaliation for blowing the whistle on efforts by then-Glenwood superintendent Jerry Rea to perform sexual-arousal experiments on residents of the home.

They also allege that Rea’s superiors at the Iowa Department of Human Services did little or nothing in response to the complaints they made about Rea’s conduct. Those superiors include then-DHS director Jerry Foxhoven and then-DHS administrator Rick Shults.

Foxhoven and Rea were fired by the state shortly after the experiments came to light. Shults, who approved the purchase of software intended for use in the experiments, retired. All three are among the defendants named in the lawsuit.

Over the past three years, the plaintiffs’ claims of wrongful termination have been dismissed by the court, leaving only the alleged violation of Iowa’s whistleblower-protection law. Recently, the judge in the case heard arguments as to why that last remaining count should either be dismissed or allowed to proceed to trial.

The fired workers say the U.S. Department of Justice’s published report of its independent investigation at Glenwood confirms their own complaints of resident mistreatment “and indisputably shows the defendants’ roles in this dark chapter of Iowa history.”

The DOJ’s report says the agency found reasonable cause to believe the state had failed to protect Glenwood residents from harm, in part by conducting unregulated experiments on human subjects, while also subjecting the residents to serious harm.

Court records also show that Dr. Mark S. Diorio, an expert psychologist retained by DHS to review the conditions at Glenwood, found that the work culture at Glenwood under Rea was considered by some to be authoritarian, disrespectful, toxic and retaliatory in nature, with some senior staff describing Rea as controlling and intimidating.

However, in seeking dismissal of the case, attorneys for the state have argued the DOJ report and Diorio’s report shouldn’t be admitted as evidence should the case proceed to trial, characterizing them as hearsay evidence of the Glenwood staff’s concerns.

The state also claims the two reports don’t qualify for the public-records exception to the hearsay rule because they are not public records as defined by the rules of evidence and are instead “investigative reports” issued by law enforcement, or “factual findings” that stem from a special investigation.

In recent months, the state has also fought the plaintiffs’ efforts to take the deposition of Kelly Garcia, the current director of DHS, the agency that was reconfigured this year and renamed the Iowa Department of Health and Human Services.

Attorneys for the state argued that “the burden of taking Director Garcia away from her work as the head of a large state agency to sit for a deposition in this case outweighs any likely benefit considering the needs of the case.”

Citing Garcia’s position in state government, the state also sought a protective order to shield her from “annoyance, embarrassment, oppression, or undue burden or expense.”

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The judge in the case rejected those arguments, noting that it was Garcia who served as a conduit to state legislators on Glenwood matters and who launched the state’s investigation of the facility once the DOJ initiated its own probe. “Only she can respond to some of the information requested by plaintiffs,” the judge ruled.

Court records show that during her February 2023 deposition, Garcia was asked whether Rea’s actions had caused Glenwood to be marked for closing in 2024.

“Yes,” Garcia replied. “The decisions by Dr. Rea absolutely compromised the facility, led to the Department of Justice investigation, and contributed to the closure.”

She added that prospective hires had expressed reluctance to work at Glenwood due to the controversy surrounding Rea’s actions. “Our inability to hire the level of clinical staff that we needed is a complicated issue, but the primary reason we were given directly was because of the DOJ investigation and the kind of media coverage around that investigation,” she testified. “A bit of a cloud over the facility.”

Garcia was also asked whether she believed Rea, Shults and Foxhoven had ignored complaints made by the plaintiffs or other employees at Glenwood.

“Yes, I believe that there were aspects of those complaints that needed further due diligence by all of the individuals you just named,” Garcia testified. “I don’t believe that Rick intentionally covered things up … Rick failed to do his due diligence to understand whether or not those complaints were true … Similar to Mr. Shults, Mr. Foxhoven failed to do his due diligence in understanding whether or not those complaints were true and whether there was any basis of truth underneath them.”

The plaintiffs in the lawsuit were dealt a serious blow in January when District Court Judge Craig Dreismeier rejected their argument that their firings amounted to wrongful termination in violation of public-policy interests.

Dreismeier ruled that while the fired workers had claimed they reported unlawful activity at Glenwood, including the unauthorized sexual-arousal studies, their claims lacked specificity.

The workers, the judge ruled, had broadly claimed that the defendants’ actions violated Glenwood policies as well as a past settlement agreement with the Department of Justice ― but, Dreismeier said, “internal policies and agreements are not sources for identifying a clearly defined and well-recognized public policy.”

A non-jury civil trial in the case is scheduled for September 2024.

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