Alisha Munoz v. Adventure Lands of America, Inc. ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-2097
Filed February 3, 2021
ALISHA MUNOZ,
Plaintiff-Appellant,
vs.
ADVENTURE LANDS OF AMERICA, INC.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Coleman McAllister,
Judge.
Alisha Munoz appeals the district court’s order granting summary judgment
in favor of Adventure Lands of America, Inc. on her claims of workplace
discrimination, hostile work environment, and wrongful discharge against public
policy. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
John Q. Stoltze of Stoltze & Stoltze, PLC, Des Moines, for appellant.
Kelsey J. Knowles, Espnola F. Cartmill, and Erika L. Bauer of Belin
McCormick, P.C., Des Moines, for appellee.
Heard by Doyle, P.J., and Tabor and Ahlers, JJ.
2
AHLERS, Judge.
Alisha Munoz brought an employment discrimination suit against her former
employer, Adventure Lands of America, Inc. (Adventureland). Munoz pleaded four
counts in her amended petition: (1) Adventureland engaged in sex discrimination
in violation of the Iowa Civil Rights Act (ICRA); (2) Adventureland engaged in
disability discrimination in violation of the ICRA; (3) Munoz was subjected to a
hostile work environment; and (4) Munoz was wrongfully discharged in violation of
public policy. The district court granted summary judgment to Adventureland on
all four counts. On appeal, we agree with the district court that Munoz failed to
provide evidence of an adverse employment action on her discrimination claims
and she failed to articulate a valid public policy to support her wrongful-discharge
claim. However, we find she generated a genuine issue of material fact on part of
her hostile-work-environment claim, so summary judgment should not have been
granted on that count in its entirety. Therefore, we affirm in part, reverse in part,
and remand for further proceedings.
I. Background Facts and Proceedings
Munoz began working as a seasonal employee for Adventureland in May
2017. Munoz worked at Adventureland’s amusement park in Altoona, first in the
rides department operating rides. Due to concerns Munoz could lose
consciousness without warning, Adventureland quickly moved her to the foods
department, where she typically served food and waited on customers. On
September 3, Munoz verbally told her supervisor that she intended for the next
day—Labor Day—to be her final day working for Adventureland. The supervisor
told Munoz that day—September 3—would be her final day of work, but
3
Adventureland paid Munoz a season bonus as if she had worked through Labor
Day. Munoz filed a complaint with the Iowa Civil Rights Commission and later
obtained a right-to-sue letter. Munoz then filed a petition with the district court,
which she later amended to claim disability discrimination, gender discrimination,
workplace harassment, and wrongful discharge against public policy.
Adventureland sought summary judgment. After a hearing, the district court
granted summary judgment in favor of Adventureland on all counts. Munoz filed a
motion to reconsider, which the court denied. Munoz appeals.
II. Standard of Review
“We review a district court’s grant of summary judgment for correction of
errors at law.” Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019). “Summary
judgment is appropriate only when the record shows no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law.” Id. (citing
Iowa R. Civ. P. 1.981(3)). “We view the summary judgment record in a light most
favorable to the nonmoving party.” Id. “[O]ur review is ‘limited to whether a
genuine issue of material fact exists and whether the district court correctly applied
the law.’” Id. (citing Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 434 (Iowa
2008)).
III. Analysis
A. Sex and Disability Discrimination
The ICRA makes it an “unfair or discriminatory practice” for an employer to
discharge an employee due to any of several characteristics of the employee,
including sex and disability. Iowa Code § 216.6(1)(a) (2017). An essential element
of an employment-discrimination claim is the plaintiff must show he or she suffered
4
“an adverse employment action.” Farmland Foods, Inc. v. Dubuque Hum. Rts.
Comm’n, 672 N.W.2d 733, 741 (Iowa 2003).
On appeal, Munoz claims she suffered an adverse employment action when
Adventureland terminated her or constructively discharged her. As to termination,
there is no genuine issue of material fact that Munoz resigned rather than having
her employment terminated by Adventureland. Munoz testified to her final day
during her deposition:
Q. On September 3rd, 2017, you had a conversation with [the
supervisor] where he told you that you could just go home that day;
right? A. Correct.
Q. So, in other words, you gave Adventureland notice that
your last day was going to be September 4th; and they accepted your
resignation and said, no, your last day is going to be September 3rd;
right? A. It wasn’t—I wouldn’t even say resignation because he told
me I could go home and never come back again. The plan was to
finish out Labor Day, do what I said, and [the supervisor] obviously
terminated me prior to that date.
Q. He didn’t let you finish your notice period; right? A. Correct.
Munoz disagreed with characterizing her separation of employment as a
“resignation,” and on appeal she complains she was not allowed to speak to
another superior before the end of her employment. However, her testimony
clearly shows she first gave Adventureland her resignation with an intent to work
an additional day, and Adventureland then ended her employment immediately
rather than allow her to work a notice period. The record contains no evidence
Adventureland intended to end Munoz’s employment before she conveyed her
resignation. Under the facts before us, Munoz caused the severance of her
employment, and Adventureland did not inflict an adverse employment action on
her by refusing to allow her to continue working after she expressed her intention
to resign. See Bradshaw v. Cedar Rapids Airport Comm’n, 903 N.W.2d 355, 362
5
(Iowa Ct. App. 2017) (“The fact the parties disagreed on the last day Bradshaw
would be in the office and the last day of his employment . . . is immaterial to the
question of who took action to sever the relationship.”); see also Curby v. Solutia,
Inc., 351 F.3d 868, 872 (8th Cir. 2003) (“An employee cannot submit a resignation
and then claim the employer’s acceptance of the resignation is an adverse
employment action.”).
As to constructive discharge, a constructive discharge occurs “when the
employer deliberately makes an employee’s working conditions so intolerable that
the employee is forced into an involuntary resignation.” Haskenhoff v. Homeland
Energy Sols., LLC, 897 N.W.2d 553, 591 (Iowa 2017) (quoting Van Meter Indus.
v. Mason City Hum. Rts. Comm’n, 675 N.W.2d 503, 511 (Iowa 2004)). During the
summary judgment hearing, Munoz’s counsel acknowledged constructive
discharge “was not preserved under the civil rights commission” and “[i]t was not
put in our pleadings.” Not surprisingly given this admission, the court’s summary
judgment order did not address constructive discharge. Munoz raised constructive
discharge in her motion to reconsider, but she did not explain how constructive
discharge was properly before the district court and the court did not address the
issue in denying her motion. Therefore, she has not preserved constructive
discharge as an issue on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide
them on appeal.”).
6
B. Hostile Work Environment
To prevail on a claim of a hostile work environment, “the employee 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.’” Simon Seeding & Sod, Inc. v. Dubuque Hum. Rts. Comm’n, 895
N.W.2d 446, 468 (Iowa 2017) (quoting Farmland Foods, 672 N.W.2d at 744). The
district court focused on the fourth element, which requires Munoz to prove “she
‘subjectively perceived the conduct as abusive’ and that ‘a reasonable person
would also find the conduct to be abusive or hostile.’” Id. at 469 (quoting Farmland
Foods, 672 N.W.2d at 744).
The objective determination considers all of 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. These factors and circumstances must disclose that
the conduct was severe enough to amount to an alteration of the
terms or conditions of employment. Thus, hostile-work-environment
claims by their nature involve ongoing and repeated conduct, not
isolated events.
Id. (quoting Farmland Foods, 672 N.W.2d at 744).
To succeed on a claim of a hostile work environment, the employee must
meet a high standard. Jackman v. Fifth Jud. Dist. Dep’t of Corr. Servs., 728 F.3d
800, 806 (8th Cir. 2013) (referring to the standard as “demanding” and noting the
standard “does not prohibit all verbal or physical harassment and it is not a general
civility code for the American workplace” (quoting Wilkie v. Dep’t of Health &
7
Human Servs., 638 F.3d 944, 955 (8th Cir. 2011))).1 To support a claim, the
conduct must be extreme and not merely rude or unpleasant. Stoddard v. BE &
K, Inc., 993 F. Supp. 2d 991, 1002 (S.D. Iowa 2014); see also Shaver v. Indep.
Stave Co., 350 F.3d 716, 721 (8th Cir. 2003) (“Conduct that is merely rude,
abrasive, unkind, or insensitive does not come within the scope of the law.”).
The high threshold has resulted in denial of many cases involving offensive
conduct. See, e.g., Ryan v. Cap. Contractors, Inc., 679 F.3d 772, 775–79 (8th
Cir. 2012) (finding employee failed as a matter of law to demonstrate the elements
necessary to establish a hostile work environment claim in spite of the fact plaintiff,
who was “moderately mentally retarded” and spoke with a stutter, was frequently
called “fucking dummy,” “fucking retard,” “stupid,” “idiot,” and “numb nuts,” and was
asked by a coworker if his mother dropped him on his head when he was little);
Shaver, 350 F.3d at 721–23 (8th Cir. 2003) (upholding summary judgment in spite
of the fact the employee, who had epilepsy, was routinely referred to as
“platehead” for a period of about two years, several co-workers suggested he was
stupid, and one coworker said he “pissed in his pants when the microwave was
on”).
We also recognize the relatively short period of time over which Munoz was
employed, as a short period of time is a factor in determining whether a hostile-
work-environment claim is viable. See, e.g., Lopez v. S.B. Thomas, Inc., 831 F.2d
1184, 1189 (2d Cir. 1987) (finding no hostile work environment when the claimed
1We cite federal decisions interpreting the federal civil rights act because those
decisions may be persuasive in construing the ICRA, although we are not bound
by them. Lynch v. City of Des Moines, 454 N.W.2d 827, 833 n.5 (Iowa 1990).
8
incidents were few in number and occurred over a short period of time); Benette v.
Cinemark U.S.A., Inc., 295 F. Supp. 2d 243, 251 (W.D.N.Y. 2003) (noting that,
though there is no threshold time period a plaintiff must surpass, three months was
an insufficient period of time to support the claim given the nature of the conduct);
Malesevic v. Tecom Fleet Servs., Inc., 72 F. Supp. 2d 932, 939 n.1 (N.D. Ind. 1998)
(“Also, the short period of time in which the alleged comments took place negates
any suggestion that the harassment was pervasive enough to amount to a hostile
work environment.”).
While mindful of the high bar Munoz must clear and the relatively short
period of time over which she was employed, we must also be mindful of the legal
standards that apply at the summary judgment stage of the proceeding. In
reviewing a district court’s grant of summary judgment, we view the record in the
light most favorable to the nonmoving party. Hedlund v. State, 930 N.W.2d 707,
715 (Iowa 2019). We also draw all legitimate inferences that can be deduced
reasonably from the record in favor of the nonmoving party. Id. Hostile-work-
environment claims present “mixed question[s] of law and fact” that are “especially
well-suited for jury determination.” See Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 605 (2d Cir. 2006) (citation omitted). “Whether harassment was so
severe or pervasive as to constitute a hostile work environment is generally a
question of fact for the jury.” Robinson v. Perales, 894 F.3d 818, 828 (7th Cir.
2018) (citation omitted); see also Jordan v. City of Cleveland, 464 F.3d 584, 597
(6th Cir. 2006) (leaving measure of severe or pervasive conduct to jury because it
is “quintessentially a question of fact” (citation omitted)); Lounds v. Lincare, Inc.,
812 F.3d 1208, 1222 (10th Cir. 2015) (recognizing “that ‘the severity and
9
pervasiveness evaluation is particularly unsuited for summary judgment’ because
it is inherently fact-found by nature” (quoting O’Shea v. Yellow Tech. Servs., Inc.,
185 F.3d 1093, 1098 (10th Cir. 1999))). Further, “the fact that the law requires
harassment to be severe or pervasive before it can be actionable does not mean
that employers are free from liability in all but the most egregious of cases.”
Schiano, 445 F.3d at 606 (citation omitted).
Applying the legal standards for review of a summary judgment ruling, we
find Munoz has generated a factual dispute that precludes summary judgment on
her hostile-work-environment claim based on disability. Viewing the record in the
light most favorable to Munoz, we note Munoz alleged daily bullying and
harassment from her supervisors at Adventureland. For example, she testified one
supervisor had a “big problem” with her medical conditions and once asked her:
“why the hell [are you] even working with restrictions like that?” She recalled
another supervisor telling her she “need[ed] to work less hours because [she was]
being a bitch.” In another exchange, a third supervisor noticed bruising on Munoz’s
face, which Munoz attributed to passing out and falling as a result of her medical
condition. The supervisor asked if her husband had beat her. When Munoz replied
that he had not, the supervisor said, “Because that’s what Hispanics do. They beat
their bitches.” Munoz also testified the third supervisor called her “a gangbanger
looking to get something,” and accused her of faking her illness and “being on so
many drugs that [she] couldn’t even pass a drug test.” Beyond those comments,
the three supervisors made fun of her “almost daily” because of the frequency of
her bathroom use, according to Munoz’s deposition testimony. Those three
supervisors also told her “on a regular basis” that it would be easy to get her fired.
10
In that same vein, the third supervisor called her “worthless” on “multiple different
occasions” and advised she should “give up on ever being promoted.” When she
reported some of these incidents to the director of her department, she received
little satisfaction. In fact, the director participated in the belittling by calling Munoz
“Alisha the Bruised” in a group email. These facts—considered in the light most
favorable to Munoz—contributed to the creation of a jury question whether she
was subjected to a hostile work environment.
Nor is Adventureland entitled to summary judgment because Munoz was a
seasonal worker. As previously noted, the relatively short period Munoz was
employed is a factor to consider as to whether there was a hostile work
environment, but it does not preclude her claim. Our supreme court has found
sufficient evidence to support a finding of a hostile work environment when
harassing remarks were made “two to three times a week over the two-month
period” the employee worked at the employer’s place of business. See Simon
Seeding, 895 N.W.2d at 470. Munoz’s testimony that she endured “almost daily”
derogatory comments about her medical condition or its symptoms contributes to
the creation of a jury question on her hostile-work-environment claim.
Adding to the creation of a jury question is the fact that the alleged harassers
were not simply co-workers, but supervisors with direct authority over Munoz.
Harassing behavior of a manager carries more potency than that of a co-equal.
See Robinson v. Perales, 894 F.3d 818, 828 (7th Cir. 2018). Further, under the
ICRA, Munoz may proceed against Adventureland “on either a direct negligence
or vicarious liability theory for supervisor harassment” in her claim alleging a hostile
work environment. See Haskenhoff, 897 N.W.2d at 575. Plus, we consider
11
Munoz’s testimony that the Adventureland managers bullied other employees who
had “medical notes,” saying, “why the hell are you even working?” Such claimed
pattern of conduct adds to the jury question whether Munoz was subjected to
overall hostility in the workplace. See Leibovitz v. N.Y.C. Transit Auth., 252 F.3d
179, 190 (2d Cir. 2001) (“[E]vidence of harassment directed at other co-workers
can be relevant to an employee’s own claim of hostile work environment
discrimination.”).
Finally, we note a jury question is generated on whether the harassment
affected a term, condition, or privilege of Munoz’s employment. Munoz testified
she was diagnosed with post-traumatic stress disorder and suffered “horrible
anxiety” since working at Adventureland. Even without the claimed diagnosis,
Munoz generated a fact question on the effect of the alleged hostility on her quality
of work. “A discriminatorily abusive work environment, even one that does not
seriously affect employees’ psychological well-being, can and often will detract
from employees’ job performance, discourage employees from remaining on the
job, or keep them from advancing in their careers.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 22 (1993). In line with that description, Munoz testified that she submitted
her resignation because she did not want to endure continued harassment for her
medical conditions. Viewing the evidence in the light most favorable to Munoz as
the nonmoving party, a jury question exists whether the offensive comments and
humiliating treatment alleged by Munoz unreasonably interfered with her job
performance.
For the foregoing reasons, we find Munoz has generated a fact question
that precludes summary judgment on her hostile-work-environment claim based
12
on disability discrimination. Therefore, we reverse the district court on that claim
and remand for further proceedings.
Before leaving the topic of Munoz’s hostile-work-environment claim, we
need to address the scope of the remand by addressing Munoz’s complaint that
the district court only considered her claim based on disability but neglected to
consider her claim based on gender. We reject this contention.
The count in Munoz’s amended petition asserting a claim for hostile work
environment mentions nothing about gender. Of course, Iowa permits “notice
pleading,” which abolishes technical forms of pleadings and requires only a
“simple, concise, and direct” statement of the claim. See Iowa R. Civ.
P. 1.402(2)(a). However, “‘notice pleading’ requires, at a minimum, ‘fair notice’ of
the claim asserted so the other party can make an adequate response.” Schmidt
v. Wilkinson, 340 N.W.2d 282, 283 (Iowa 1983) (quoting Gosha v. Woller, 288
N.W.2d 329, 331 (Iowa 1980)). Submitting a pleading that references disability,
but does not mention gender, did not provide “fair notice” to Adventureland or the
district court. Furthermore, when asked about her harassment claim during her
deposition, Munoz acknowledged that her claim was based only on the conduct
directed toward her surrounding her doctors’ notes and restrictions. Finally, when
resisting Adventureland’s motion for summary judgment on this count, Munoz
expressly stated her position that she was subjected to the complained-of
treatment “due to her disabilities.” Based on these circumstances, we find Munoz
failed to properly plead and has therefore waived any claim based on gender-
based hostile work environment. She is not permitted to create such a claim in a
13
motion to reconsider after her pled claim (i.e., disability-based hostile work
environment) was dismissed via summary judgment.
C. Wrongful Discharge in Violation of Public Policy
In order to prevail on a claim of wrongful discharge in violation of public
policy, Munoz must prove:
(1) existence of a clearly defined public policy that protects employee
activity; (2) the public policy would be jeopardized by the discharge
from employment; (3) the employee engaged in the protected
activity, and this conduct was the reason for the employee's
discharge; and (4) there was no overriding business justification for
the termination.
Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 761 (Iowa 2009). Even if we assume
Munoz was terminated, she has not pointed to a “clearly defined public policy” to
support her wrongful-discharge claim. To the extent she points to ICRA as a
source of public policy, ICRA offers a cause of action for employees to enforce
violations of the act. See Iowa Code §§ 2162.15–.17. “[W]hen a civil cause of
action is provided by the legislature in the same statute that creates the public
policy to be enforced, the civil cause of action is the exclusive remedy for violation
of that statute.” Ferguson v. Exide Techs., Inc., 936 N.W.2d 429, 435 (Iowa 2019).
Therefore, Munoz cannot rely on ICRA to provide public policy to support her
wrongful-discharge claim, and her wrongful-discharge claim must fail.
IV. Conclusion
We find no genuine issue of material fact and the district court properly
found Adventureland was entitled to judgment as a matter of law on Munoz’s
claims of sex discrimination, disability discrimination, and wrongful discharge in
violation of public policy. Therefore, we affirm those rulings. Further, Munoz is not
14
permitted to pursue a claim for hostile work environment based on gender for the
reasons stated in this opinion.
As to Munoz’s claim for hostile work environment based on disability, we
find Adventureland has failed to show there is no genuine issue of material fact.
Therefore, we reverse the decision of the district court granting Adventureland
summary judgment on the hostile-work-environment claim based on disability and
remand for further proceedings on that claim only.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.