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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 courts 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 Millss conduct to his direct supervisor, Michael Sorensen, at the end of September. Wilson again reported Millss 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 Millss 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 Millss termination, Wilson had some difficulties with Millss 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 Millss harassment. He stated that his "condition was aggravated by his frustration and feelings of helplessness from Cintas managements 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 Millss 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. 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 Millss 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 Burbach v. Radon

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

6 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)
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