IN THE COURT OF APPEALS OF IOWA
No. 18-1817
Filed November 6, 2019
OLIVER FENCEROY,
Plaintiff-Appellant,
vs.
GELITA USA, INC., BOB KERSBERGEN, TOM HAIRE, JEFF TOLSMA, and
JEREMY KNEIP,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary,
Judge.
A plaintiff appeals the district court summary judgment dismissal of his
claims of racial harassment, racial discrimination, and intentional infliction of
emotional distress. AFFIRMED.
Jay Denne and Stanley E. Munger of Munger, Reinschmidt & Denne, L.L.P.,
Sioux City, for appellant.
Ruth A. Horvatich, Aaron A. Clark, and Abigail M. Moland of McGrath North
PC LLO, Omaha, Nebraska, for appellees.
Heard by Bower, C.J., and May and Greer, JJ.
2
BOWER, Chief Judge.
Oliver Fenceroy appeals the district court’s granting of summary judgment
in favor of defendants Gelita USA, Inc. (Gelita), Tom Haire, and Jeff Tolsma and
dismissing his claims of racial harassment, racial discrimination, and intentional
infliction of emotional distress. We find Fenceroy did not show Gelita had the
requisite knowledge to support the harassment claims, did not establish an
adverse employment action for his discrimination claim, and the evidence did not
support a finding of severe emotional distress. We affirm.
I. Background Facts & Proceedings
Gelita is a corporation based out of Germany with a plant in Sergeant Bluff,
Iowa, which produces gelatin products used in a variety of industries. Fenceroy,
an African-American, began working for Gelita in 1975 and retired in March 2013.
For the majority of his tenure at Gelita, Fenceroy was the only African-American
employee in the plant.
Gelita’s Code of Conduct provided to employees includes an anti-
harassment policy as well as a reporting procedure. Fenceroy was also aware he
had complaint procedures available to him through his union membership.
Gelita holds annual training sessions concerning harassment and
discrimination, which Fenceroy acknowledged attending on at least three separate
occasions. Jeff Tolsma, Gelita’s current head of human resources, sent a memo
to all employees in August 2010, explaining harassment was a serious offense that
could lead to disciplinary action.
In October 2011, Fenceroy reported to human resources that a rope he
believed was tied to resemble a noose was hanging in the plant where he worked.
3
Tolsma and the production manager for the plant, Jeremie Kneip, went to the
factory and looked at the rope, determining the rope—which had a loop tied at the
end—was used for a valid employment purpose to create pressure on a scale and
the loop might be used as a handle. But, they ordered the rope to be untied and
advised Fenceroy of their action. Fenceroy observed the rope was soon tied back
into the loop by unknown persons in the factory. Tolsma and Kneip do not appear
to have ordered the rope untied again. However, Fenceroy made no additional
reports to human resources to complain of the “noose.”
In 2012, Gelita sent out a “confidential” survey to all employees asking for
suggested improvements or changes to the harassment policy. Fenceroy did not
report any harassment through the survey.
After retiring from Gelita in 2013, Fenceroy filed a complaint with the Iowa
Civil Rights Commission (ICRC). Fenceroy identified multiple occasions in 2012
when Gelita employees, including Tom Haire and Bob Kersbergen, made racially
discriminatory or harassing comments; many of the comments were overtly white
supremacist in nature or otherwise denigrated African-Americans. Kersbergen
allegedly assaulted Fenceroy by grabbing and pulling him to the ground. Fenceroy
alleges Kneip told him not to bother bringing complaints to human resources.
Fenceroy stated the foremen did not take action when he complained or they
witnessed the harassing comments. Fenceroy did not report any of the 2012
incidents to human resources when they occurred or at any time prior to his
retirement. The ICRC issued Fenceroy a right-to-sue letter.
4
On May 30, 2014, Fenceroy filed suit against Gelita and employees Tolsma,
Kneip, Kersbergen, and Haire, alleging violations of the Iowa Civil Rights Act
(ICRA) and tortious infliction of emotional distress.
During the discovery process, the supreme court heard an interlocutory
appeal, which examined the limits of the attorney–client privilege when a defendant
relies on the attorney’s investigation.1 Fenceroy v. Gelita USA, Inc., 908 N.W.2d
235, 238 (Iowa 2018) (deciding “whether plaintiff’s counsel may depose defense
counsel and obtain counsel’s prelawsuit work product”). The district court’s ruling
denying a protective order for defense counsel’s investigative notes was affirmed,
and the case was remanded. Id. at 249.
On April 7, 2016, Gelita, Haire, and Tolsma filed a motion for summary
judgment. Kersbergen did not join in the motion.2 The motion was amended in
February 2018, following the supreme court’s ruling on the discovery issue. On
September 21, the district court granted the motion for summary judgment, holding
Gelita had established the Faragher-Ellerth affirmative defense3 and was entitled
to judgment as a matter of law. The court found Gelita had no notice of the
harassing behavior and could not be held liable for negligent control of the work
environment; Fenceroy had not established he suffered an adverse employment
action in his racial-discrimination claim; and Fenceroy could not establish the
defendants’ conduct resulted in his suffering severe emotional distress.
1
The case was stayed in district court during the pendency of the interlocutory appeal.
2
Fenceroy’s claims against Kersbergen are still outstanding.
3
The Faragher-Ellerth affirmative defense is a “two-part defense [that] requires employers
to show reasonable care was exercised to ‘prevent and correct promptly any . . . harassing
behavior’ and to further show the claimant employee ‘unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer.’”
Fenceroy, 908 N.W.2d at 242 (citations omitted).
5
Fenceroy’s claims against Gelita, Haire, and Tolsma were dismissed with
prejudice. Kneip was not formally served with Fenceroy’s petition, and the court
dismissed the claims against him without prejudice.
Fenceroy appeals the summary judgment ruling as to Gelita, Haire, and
Tolsma. Fenceroy does not appeal Kneip’s dismissal.
II. Standard of Review
“Appellate review of a grant of a motion for summary judgment is for errors
at law.” Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004).
Summary judgment is to be granted if the evidence shows “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” Iowa R. Civ. P. 1.981(3). The court looks at the evidence in the
light most favorable to the non-moving party and considers “every legitimate
inference that can be reasonably deduced from the record.” Estate of Harris, 679
N.W.2d at 677 (quoting Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa
2001)).
III. Analysis
A. Supervisor harassment. To establish a hostile-work-environment
claim under the ICRA, a 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.” Boyle v. Alum-Line, Inc., 710 N.W.2d 741,
746 (Iowa 2006) (quoting Farmland Foods, Inc. v. Dubuque Human Rights
Comm’n, 672 N.W.2d 733, 744 (Iowa 2003)).
6
An employer may be entitled to the Faragher-Ellerth affirmative defense to
claims of vicarious liability for harassment by a supervisor that do not involve
tangible employment action. See Fenceroy, 908 N.W.2d at 241–42. “[V]icarious
liability does not replace the direct negligence theory of employer liability, but
rather supplements the theory with an additional agency-based standard.” Id. at
242. “Generally, if an employee fails to notify the employer of wrongdoing, courts
have found that such failure, coupled with adequate preventative policies, is
sufficient to prevail in the defense.” Id. at 246.
The district court did not examine the underlying hostile-work-environment
claim, but instead granted summary judgment based on the Faragher-Ellerth
affirmative defense. The court found Gelita had valid anti-harassment policies in
place and exercised reasonable care to prevent and correct harassment in the
workplace. Fenceroy was aware he could file a grievance regarding harassment
and discrimination. He filed only one grievance during his thirty-seven years of
employment—in 2011—when he reported a rope looped into an apparent noose.
Gelita investigated and took action on his grievance.
Fenceroy had internal procedures available and a union representative who
could inform Gelita of alleged continuing harassing behaviors by coworkers and
supervisors. He admitted to knowing and understanding that if his immediate
supervisor or foreman was the problem, he was to report to an upper manager or
human resources. He did not do so. Fenceroy made no further complaint nor did
he take advantage of corrective opportunities offered to him until after he retired—
a point at which Gelita had no opportunity to fix the problem with respect to
Fenceroy. Fenceroy’s decision to not pursue corrective actions before retirement
7
was not within the control of the employer. We conclude the district court did not
err in determining Gelita is entitled to the Faragher-Ellerth defense.
B. Coworker harassment. When establishing a harassment claim
against non-supervisors, the plaintiff must establish the employer was negligent in
controlling working conditions. Farmland Foods, 672 N.W.2d at 744. To establish
this claim, in addition to the four elements of a hostile work environment listed
above, the plaintiff must show the employer “knew or should have known of the
harassment and failed to take proper remedial action.” Id. (citation omitted).
The district court ruled Fenceroy did not show Gelita “knew or should have
known of the harassment and failed to take proper remedial action.” See id.; see
also Boyle, 710 N.W.2d at 746. The court found no evidence to suggest that
employee harassment of Fenceroy “was so open and obvious that Gelita should
have, on its own, discovered the harassment.” Fenceroy did not notify Gelita of
the continuing harassment, and Gelita took proper remedial action when Fenceroy
filed his single complaint. Therefore, Fenceroy has failed to establish the final
element of his harassment claim.
C. Discrimination. To establish a prima facie claim of racial
discrimination, a plaintiff must show they are a member of a protected class, were
performing the work satisfactorily, and suffered an adverse employment action.
Farmland Foods, 672 N.W.2d at 741 n.1. “[A]n adverse employment action is ‘an
action that detrimentally affects the terms, conditions, or privileges of
employment.’” Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 587
(Iowa 2017) (citation omitted). The question of “[w]hether an adverse employment
action occurred ‘normally depend[s] on the facts of each situation.’” Id. (citation
8
omitted). “[M]inor changes in working conditions that only amount to an
inconvenience cannot support discrimination.” Farmland Foods, 672 N.W.2d at
742.
Fenceroy claims Gelita constructively discharged him—that leaving the
“noose” up in the factory meant Fenceroy had no choice but to quit his employment
at Gelita. “Constructive discharge exists when the employer deliberately makes
an employee’s working conditions so intolerable that the employee is forced into
an involuntary resignation.” Van Meter Indus. v. Mason City Human Rights
Comm’n, 675 N.W.2d 503, 511 (Iowa 2004) (citation omitted). “The test for
constructive discharge is objective, evaluating whether a reasonable person in the
employee’s position would have been compelled to resign and whether an
employee reasonably believed there was no possibility that an employer would
respond fairly.” Haskenhoff, 897 N.W.2d at 592. “[C]onditions will not be
considered intolerable unless the employer has been given a reasonable chance
to resolve the problem.” Van Meter Indus., 675 N.W.2d at 511.
The district court concluded Fenceroy “did not provide Gelita with a
reasonable chance to work out any problems he was having while he worked for
Gelita.” The court also noted the extended timeframe between the 2011 reported
incident and Fenceroy’s 2013 retirement suggested Fenceroy did not find “his
working conditions so intolerable that he must resign.”
In August 2012, Fenceroy provided Gelita with six-month’s notice of his
intent to retire. He then extended his retirement date an additional month so he
could qualify for full Social Security benefits at the time of his retirement. In his
deposition, Fenceroy pinpointed the noose as “the last straw that broke the camel’s
9
back.” Fenceroy reported the noose in October 2011 and asserted the rope
continued to be tied with the loop at the end until his retirement. He did not file a
complaint or otherwise notify human resources and the company of the loop’s
continuing existence or of the comments and assaults occurring at work. He
waited ten months after his complaint before submitting his retirement notice. He
then remained on the job for an additional seven months after his notice of
retirement.
Looking at the evidence in the light most favorable to Fenceroy, we find he
has failed to allege sufficient facts to establish a constructive discharge. Fenceroy
has failed to prove an adverse employment action and so has failed to establish a
prima facie case of racial discrimination. The district court did not err in granting
the motion for summary judgment on this claim.
D. Intentional infliction of emotional distress. A successful claim of
intentional infliction of emotional distress requires a plaintiff demonstrate four
elements: “(1) outrageous conduct by the defendant; (2) the defendant
intentionally caused, or recklessly disregarded the probability of causing, the
emotional distress; (3) plaintiff suffered severe or extreme emotional distress; and
(4) the defendant’s outrageous conduct was the actual and proximate cause of the
emotional distress.” Smith v. Iowa State Univ. of Sci. & Tech., 851 N.W.2d 1, 26
(Iowa 2014) (citation omitted). The district court determined Fenceroy’s emotional
distress did not rise to the level of “severe or extreme emotional distress,” and
consequently, the claim failed as a matter of law.
“Our cases that have found substantial evidence of emotional harm have
had direct evidence of either physical symptoms of the distress or a clear showing
10
of a notably distressful mental reaction caused by the outrageous conduct.” Id. at
30 (citation omitted). In Smith, our supreme court looked to the Restatement
(Second) of Torts to distinguish between emotional distress—which “includes all
highly unpleasant mental reactions, such as fright, horror, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment, worry, and
nausea”—and severe or extreme emotional distress that “is so severe that no
reasonable man could be expected to endure it.” 851 N.W.2d at 30 (quoting
Restatement (Second) of Torts § 46 cmt. j, at 77–78).
Fenceroy’s allegations of emotional distress included “fright, horror, shame,
humiliation, embarrassment, anger, disappointment, and worry.” The language
tracks the terms listed in the Restatement for “emotional distress.” But severe or
extreme emotional distress is required. See id. Moreover, when comparing
Fenceroy’s emotional distress allegations to the cases discussed in Smith,
evaluating sufficient evidence of severe emotional distress to go to the jury,
Fenceroy’s allegations of distress are akin to the cases where the emotional
distress alleged was insufficient to reach the jury. See id. at 30–31 (collecting
cases).4 Fenceroy has not offered evidence of a physical manifestation or a
debilitating mental or emotional reaction to his coworkers’ conduct. We therefore
affirm the district court’s finding his claim for intentional infliction of emotional
distress fails as a matter of law.
AFFIRMED.
4
The cases with sufficient evidence to reach the jury generally exhibited some acute
physical or psychological manifestation of the distress. See Smith, 851 N.W.2d at 30–31.