NICHOLAS R. WILSON , Plaintiff - Appell ant , vs. CINTAS CORPORATION NO. 2, and RYAN MILLS, Individually , Defendant s - Appell ees .
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IN THE COURT OF APPEALS OF IOWA
No. 8-937 / 08-0698
Filed December 17, 2008
NICHOLAS R. WILSON,
Plaintiff-Appellant,
vs.
CINTAS CORPORATION NO. 2, and
RYAN MILLS, Individually,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Judge.
An employee appeals from the district court‟s ruling granting summary
judgment and dismissing his claims of intentional infliction of emotional distress
and negligent retention. AFFIRMED.
Mark D. Sherinian and Melissa C. Hasso, West Des Moines, for appellant.
Justin E. LaVan, John Haraldson, and George Lamarca of LaMarca &
Landry, P.C., Des Moines, for appellees.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
POTTERFIELD, J.
I. Background Facts and Proceedings
Nick Wilson was hired to work in the Des Moines branch of Cintas on July
31, 2006. His job was to load and unload service trucks in the warehouse facility.
While employed at Cintas, Wilson regularly worked with Ryan Mills, who was a
driver for Cintas. Wilson estimated that he and Mills worked in the same area for
five to ten minutes per day.
Wilson and Mills never got along.
Wilson asserts that Mills verbally
abused him and that his conduct escalated in September 2006. Wilson testified
that by September, he had to withstand a “constant barrage of personal attacks,
insults, and vile profanity” directed at him every day. 1 Specifically, Wilson asserts
that Mills repeatedly called him a “lazy motherfucker,” a “fat ass,” a “fucking
asshole,” a “fat fuck,” a “big fat lazy fuck,” a “worthless piece of shit,” and a
“stupid motherfucker.”
Other employees testified that Wilson and Mills were
mutually involved in bickering, arguing with, and swearing at one another.
Wilson reported Mills‟s conduct to his direct supervisor, Michael Sorensen,
at the end of September. Wilson again reported Mills‟s yelling and screaming to
Sorensen and Chris Jackson, the office manager and local human resources
representative, in the second week of October.
However, Wilson and Mills
continued to fight, and toward the end of October, Wilson was written up for
yelling at Mills. Wilson approached Sorensen again in mid-November, at the
beginning of December, and at the end of December complaining about Mills.
1
Mills admits that there was some sort of verbal altercation “towards the end, pretty
much every day.”
3
Wilson testified that Sorensen made very little effort to resolve the situation, and
one time even told him to “stop fucking with [Mills].”
On December 22, 2006, Mills was given a written warning for verbally
harassing another office worker.2 On December 28, 2006, after an altercation
with Mills, Wilson called the Cintas Hotline, one of several resources employees
were directed to use to report inappropriate behavior. Wilson testified that he
called the hotline because Mills‟s conduct had been occurring for two and a half
months and his local supervisors were not improving the situation. The day after
Wilson called the hotline, Mills was terminated for verbally harassing Wilson.
Cintas documented that Mills was terminated because it was his fourth
occurrence of shouting inappropriate language and because he ignored
instructions given to him to remain professional and refrain from using
inappropriate language. After Mills‟s termination, Wilson had some difficulties
with Mills‟s brother, Quentin, who was also a driver for Cintas.
On January 30, 2007, Wilson voluntarily left his employment with Cintas to
pursue a career in the medical field. Despite his problems with Mills, he reported
in his exit interview that Cintas exceeded his overall employment expectations
and that it was one of his best job experiences.
Several months later, Wilson sought counseling for the emotional distress
he claimed was caused by Mills‟s harassment. He stated that his “condition was
aggravated by his frustration and feelings of helplessness from Cintas
management‟s failure to prevent further harassment despite his repeated pleas.”
2
Mills had also been verbally warned for reckless driving on November 2, 2006.
4
Wilson was diagnosed with anxiety, depression, paranoia, and post-traumatic
stress disorder.
On May 2, 2007, Wilson filed a petition alleging claims of negligent
retention against Cintas, intentional infliction of emotional distress against Mills,
Quentin Mills, and Sorensen, and vicarious liability against Cintas for the acts of
Sorensen.3 Wilson later indicated that he wanted to dismiss the claims against
Sorensen and Quentin Mills. Cintas, Sorensen, and Quentin Mills moved for a
summary judgment, which the district court granted. Wilson appeals, arguing
that the district court erred in finding that: (1) there was no issue of material fact
as to whether Mills‟s conduct was outrageous; and (2) harassment is not a
wrongful act that can support a negligent retention claim.
II. Standard of Review
We review a district court ruling on a motion for summary judgment for
correction of errors at law. Iowa R. App. P. 6.4; Rathje v. Mercy Hosp., 745
N.W.2d 443, 447 (Iowa 2008). Summary judgment is proper when no genuine
issue of material fact exists and the moving party is entitled to judgment as a
matter of law. Farmers Nat’l Bank of Winfield v. Winfield Implement Co., Ltd.,
702 N.W.2d 465, 466 (Iowa 2005). We review to determine: (1) whether there is
a genuine issue of material fact; and (2) whether the district court correctly
applied the law. Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005). A fact
issue is genuine if reasonable minds can disagree on how it should be resolved.
Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001). We review the
3
He later amended his petition to include claims of vicarious liability against Cintas for
the acts of Mills and negligence against Cintas for failing to protect him from an alleged
assault.
5
evidence in the light most favorable to Wilson, and the defendants have the
burden of showing the nonexistence of a material fact.
Burbach v. Radon
Analytical Labs., Inc., 652 N.W.2d 135, 136 (Iowa 2002).
III. Outrageous Conduct
Wilson argues on appeal that the district court erred in finding that Mills‟s
conduct, as a matter of law, was not outrageous. To establish a prima facie case
of intentional infliction of emotional distress, Wilson had the burden of proving
outrageous conduct by Mills. Van Baale v. City of Des Moines, 550 N.W.2d 153,
156 (Iowa 1996). “It is for the court to determine in the first instance whether the
relevant conduct may reasonably be regarded as outrageous.” Vinson v. LinnMar Cmty. Sch. Dist., 360 N.W.2d 108, 118 (Iowa 1984).
In making its
determination, the court is to consider the relationship between the parties, as
characterization of conduct as outrageous may result from an abuse of position
by one who has power over another. Id.
We have defined “outrageous conduct” as conduct that is “so extreme in
degree as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Harsha v. State Sav.
Bank, 346 N.W.2d 791, 801 (Iowa 1984). Our supreme court has adopted a
portion of the Restatement that “highlights the egregiousness required” to classify
conduct as outrageous:
It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended to
inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. Liability has
been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible
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bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts
to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!”
Northrup v. Farmland Indus., Inc., 372 N.W.2d 193, 198 (Iowa 1985) (quoting
RESTATEMENT (SECOND)
OF
TORTS § 46 cmt. d). Iowa case law establishes that
proving “outrageous conduct” is not easy. Our supreme court has found that
“outrageous” conduct must be “extremely egregious; mere insult, bad manners,
or hurt feelings are insufficient.” Van Baale, 550 N.W.2d at 156.
The liability [for intentional infliction of emotional distress] clearly
does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. The rough edges of our
society are still in need of a good deal of filing down, and in the
meantime plaintiffs must necessarily be expected and required to
be hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind.
McClinton v. Iowa Methodist Med. Ctr., 444 N.W.2d 511, 514 (Iowa Ct. App.
1989) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d).
Wilson acknowledges that individual instances involving behavior similar
to Mills‟s would likely be insufficient to support a finding of outrageous conduct.
However, Wilson asks the court to find that the ongoing, repetitive nature of the
conduct could elevate the conduct to a level of outrageousness that could
support a claim for intentional infliction of emotional distress.
We find that
Wilson‟s case is distinguishable from the cases he cites in support of this
contention, including the one case he cites that has binding authority, Blong v.
7
Snyder, 361 N.W.2d 312 (Iowa Ct. App. 1984)4. In Blong, the employee was
having problems with his supervisor.
Id. at 313–14.
In contrast, Mills was
Wilson‟s coworker and was not in a position of authority over Wilson.
The
relationship between the parties is a significant factor to consider, and Mills‟s lack
of authority strengthens the defendants‟ claim that Mills‟s behavior was not
outrageous. Vinson, 360 N.W.2d at 118. In addition, the supervisor‟s conduct in
Blong was more outrageous and extensive than Mills‟s conduct.
We conclude that the record does not support a finding that Mills‟s
behavior was outrageous. The evidence establishes that Mills and Wilson did
not get along and both engaged in conduct that could be described as
inappropriate. The verbal abuse that occurred, even on a daily basis, for five to
ten minutes per day does not rise to the level of extreme egregiousness that we
have required in the past. We decline to expand the current scope of case law to
allow behavior between employees that is not considered outrageous to
constitute outrageous behavior simply because it occurs on a regular basis. We
agree with the district court‟s finding that Mills‟s conduct was “undoubtedly
inconsiderate, unkind, and offensive, and may even be characterized as
malicious, but it does not rise to the level of outrageousness as envisioned by our
courts.” Because Mills‟s conduct does not fit within our definition of outrageous,
4
Blong was discharged and filed a grievance; after negotiations, he was reinstated.
Blong v. Snyder, 361 N.W.2d 312, 314 (Iowa Ct. App. 1984). After he was reinstated, he
was falsely “accused of stealing, wasting time, intentionally breaking his machine,
intentionally producing inferior parts, violating fifteen company rules, and „playing with
himself‟ in the restroom” and was given extra work without receiving the proper tools to
do the job and “was then berated, threatened, and disciplined for his inability to properly
complete the task.” Id. at 317.
8
we find that granting summary judgment on the claim of intentional infliction of
emotional distress was correct.
IV. Negligent Retention
Wilson also argues that the district court erred in finding that harassment
is not a “wrongful act” that can support a negligent retention claim. In order to
establish a case of negligent retention, Wilson must prove that: (1) a Cintas
employee committed an underlying tort or wrongful act that caused a
compensable injury; and (2) Cintas‟s negligent retention of the employee caused
the injury. Kiesau v. Bantz, 686 N.W.2d 164, 172 (Iowa 2004). Thus, Wilson
must prove “a case within a case” and show that Mills‟s underlying wrongful act
caused a compensable injury. Id. The district court properly found that Wilson
failed to show that Mills‟s wrongful act of harassment caused a compensable
injury.
The only injury that Wilson alleges is emotional harm. Thus, Wilson has
the burden of proving that his emotional harm is a compensable injury in order to
succeed on his claim of negligent retention.
A thorough reading of Clark v.
Estate of Rice ex rel. Rice, 653 N.W.2d 166 (Iowa 2002), reveals the court‟s
intention to allow damages for emotional harm in two cases. First, “emotional
distress can be a proper element of damages in a tort action” because “the
emotional distress lies at the very core of the tort itself.” Clark, 653 N.W.2d at
170. Second, emotional distress “can also be a proper element of damages
when associated with physical injury.”
Id.
Wilson does not allege that he
sustained any physical injuries. He correctly states the law established in Niblo
v. Parr Mfg., Inc., 445 N.W.2d 351, 353-54 (Iowa 1989), that the general rule in
9
Iowa is that emotional distress damages are permitted for torts involving willful or
unlawful conduct. “When the tort involves willful or unlawful conduct, rather than
negligence, recovery of mental distress damages has been allowed despite a
lack of injury in a variety of different factual situations.” Niblo, 445 N.W.2d at 354
(emphasis added). Iowa case law thus requires an underlying tort, not merely
wrongful conduct, to establish damages for emotional distress when no physical
damage is present.
While Wilson argues that wrongful conduct, even if it is not a tort, is
enough to establish damages, the Iowa cases that he cites in support of this
contention involve a tort. See Kiesau, 686 N.W.2d at 169 (holding that summary
judgment on the grounds that no physical injury was incurred was improper on
claim of negligent hiring, supervision, or retention involving the underlying tort of
defamation); Niblo, 445 N.W.2d at 357 (allowing damages for mental distress in a
case involving the tort of wrongful discharge).
In addition, the Restatement
comment cited by Wilson enumerating causes of action for which emotional
distress damages are allowed also includes only torts. RESTATEMENT (SECOND)
OF
TORTS § 905 cmt. c (allowing emotional damages in cases of battery, assault,
false imprisonment, defamation, and malicious prosecution). Wilson does not
cite any controlling authority for his contention that Mills‟s wrongful conduct, even
if intentional, created a compensable injury unless that conduct is also a tort.
Wilson alleges that Mills‟s harassment, which was intentional conduct,
supports his claim for emotional distress. “[V]iolation of a criminal statute gives
rise to a civil cause of action only if such an action appears, by express terms or
clear implication, to have been intended by the legislature.” Seeman v. Liberty
10
Mut. Ins. Co., 322 N.W.2d 35, 38 (Iowa 1982).
We agree with an earlier
persuasive opinion by this court finding that it does not “appear „by express terms
or clear implication‟” that the legislature intended that harassment in violation of
Iowa Code section 708.7 give rise to a civil cause of action for harassment.
Davenport v. City of Corning, No. 06-1156 (Iowa Ct. App. Oct. 24, 2007). Thus,
harassment is not a tort, and Wilson, though he has alleged a wrongful act,
alleges no underlying tort that would support his claim of emotional harm.
Because Wilson has shown no physical injury or underlying tort, his emotional
distress damages are not compensable.
Accordingly, Wilson has shown no
compensable injury as required to establish a case of negligent retention. We
therefore affirm the district court‟s finding that summary judgment should be
granted in favor of the defendants.
AFFIRMED.
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