from the Iowa District Court for Woodbury County, Jeffrey L.
interlocutory appeal, the defendants challenge the district
court's denial of their motion for summary judgment.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER
F. Pohren and Aaron F. Smeall of Smith, Slusky, Lazer, Pohren
& Rogers, L.L.P., Omaha, Nebraska, for appellants.
Denne and Stanley E. Munger of Munger, Reinschmidt &
Denne, L.L.P., Sioux City, for appellee.
by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Cote worked for Derby Insurance Agency from 1998 until 2014.
In 2014, she sued the agency and Kevin Dorn (collectively,
Derby),  alleging sexual discrimination based on a
hostile work environment, as well as the torts of intentional
infliction of emotional distress and assault. On
interlocutory appeal, Derby challenges the district
court's denial of its motion for summary judgment, first
arguing it is exempt from the provisions of the Iowa Civil
Rights Act (ICRA) because it had less than four employees
and, second, contending all of Cote's claims are either
time barred, preempted, or fail to raise a question of
employee-numerosity issue, the district court appropriately
decided Derby, as a corporation, did not qualify for the
statutory exemption for "members of the employer's
family." Iowa Code § 216.6(6)(a) (2014).
Accordingly, Derby is subject to the ICRA. On the
statute-of-limitations issues, the district court correctly
found Cote alleged inappropriate actions that occurred within
the limitations periods. Derby failed to secure a district
court ruling on its argument the alleged torts were preempted
by the ICRA. Thus, we decline to address the preemption
issue. On the intentional-infliction-of-emotional-distress
claim, we find sufficient evidence of "outrageous
conduct" to generate a jury question. But on the assault
claim, we conclude the court should have granted summary
judgment to Derby. Accordingly, we affirm in part, reverse in
part, and remand for further proceedings.
Facts and Prior Proceedings
start with an overview of the facts from the summary judgment
record, taken in the light most favorable to Cote, the
nonmoving party. See Roll v. Newhall, 888 N.W.2d
422, 425 (Iowa 2016). Derby is organized as an Iowa
subchapter "S" corporation. Its president and sole
shareholder is Patricia Dorn, who is married to Kevin Dorn.
Cote started work for Derby as a customer-service
representative. In 2003, she was promoted to office manager.
alleges Kevin Dorn sexually harassed her and other female
colleagues over a period of seven years. The first
complaint came from employee Sandy Dobson, who told Cote in
2005 that Dorn came into Dobson's office and exposed his
genitals to her. According to Cote, she and Dobson
"talked it out and both agreed it was a fluke
thing." But when Dorn again exposed himself to Dobson a
short time later, Dobson began documenting the incidents. In
her affidavit, Dobson reported being "shocked" by
Dorn's behavior. Cote recalled Dorn exposing himself to
Dobson one or two more times before Dobson ended her
employment with Derby. Neither Cote nor Dobson took any
additional action at that time.
renewed his pattern of harassing behavior about two years
later- exposing his genitals to Derby employee Stephanie
Ptak. According to Cote, the incident occurred in the front
area of the office while Dorn was standing at the facsimile
machine. Cote was gone for lunch when Dorn approached Ptak,
but Ptak disclosed the harassment to Cote as soon as she
returned to the office. Like Dobson, Ptak ended her
employment with Derby before either she or Cote took any
further action. Cote shared information about Dorn's
conduct toward Dobson and Ptak with another female coworker
at the time it occurred.
Dobson and Ptak left Derby, Dorn turned his sexual harassment
toward Cote, according to her affidavit. The first incident
was in 2007, when she was working "up front in the
customer services area." She alleged: "[N]o one
else was present because it was early in the morning and I
was generally the only person who showed up for work on time
before 8:30 a.m." She claimed Dorn came around her desk
"with an obvious erection in his pants." She
stated: "I didn't want to believe that he was
sexually harassing me at first because I was older than Sandy
and Stephanie, but as he kept doing it, it was obvious."
alleged in her affidavit that Dorn "did the same thing
several times per year." Cote also described several of
these harassing incidents in her complaint to the Iowa Civil
Rights Commission (ICRC). She recalled that during one
incident when Dorn stood particularly close to her, she
reached for some papers and accidentally touched his penis
with the back of her hand. In an April 2011 encounter, Dorn
stood near Cote asking her questions; Cote answered but did
not look at him, fearing he would be exposing his genitals.
Dorn left and then returned, faced Cote, and again asked her
a question. Cote made eye contact with Dorn, trying to avoid
looking at his crotch. But she "could tell his pants
were unzipped, and gaping open." Dorn left Cote's
area when another Derby employee arrived in the parking lot.
described another incident of harassment that occurred in
Dorn's vehicle. She recalled Dorn would sometimes drive
her to work during the winter when the weather was bad.
During one such trip, Dorn "drove the whole way to work
with his right hand groping his crotch and left hand on the
also discussed an incident from February 2012, in which Dorn
stood near the facsimile machine and asked her questions.
When she looked at Dorn, "his pants were unzipped and
gaping open." On one occasion during March 2012, Dorn
came to her "sexually aroused wanting [her] to look at
him by asking [her] stupid questions." Cote recalled
that Dorn continued to similarly harass her
"periodically" throughout June and July 2012. She
alleged Dorn "would come wandering around my work area,
either asking me about something, or not saying anything at
all." In her ICRC complaint, Cote wrote: "I
IMMEDIATELY feel my body tense up and try not to look at him.
I am confident he is 'displaying' himself again (like
always), because I can tell by his demeanor."
asserted Dorn stopped harassing her "around August 1,
2012." She filed her ICRC complaint on April 10, 2013.
The ICRC issued an administrative release, commonly called a
right-to-sue letter, on January 10, 2014. Cote filed her
petition in April 2014, alleging a hostile work
environment and sex-based discrimination claim. Cote
amended her petition in May, asserting Dorn had assaulted her
and intentionally inflicted emotional distress.
December 2015, Derby filed a motion for summary judgment. In
March 2016, the district court denied Derby's motion,
with the exception of "grant[ing] summary judgment on
Cote's [tort] claims to the degree that they are based on
events that occurred before April 7, 2012."
appeals; Cote has not cross-appealed.
Scope and Standards of Review
review the district court's denial of summary judgment
for correction of legal error. See Jones v. Univ. of
Iowa, 836 N.W.2d 127, 139 (Iowa 2013).
[S]ummary judgment is appropriate if the record reveals a
conflict only concerns the legal consequences of undisputed
facts. When reviewing a court's decision to grant summary
judgment, we examine the record in the light most favorable
to the nonmoving party and we draw all legitimate inferences
the evidence bears in order to establish the existence of
questions of fact.
Id. at 139-40 (quoting Pitts v. Farm Bureau Life
Ins. Co., 818 N.W.2d 91, 96-97 (Iowa 2012)).
the extent [an] appeal involves questions of statutory
interpretation, we review for correction of errors at
law." State v. Howse, 875 N.W.2d 684, 688 (Iowa
2016) (citation omitted). We construe the ICRA "broadly
to effectuate its purposes." Iowa Code § 216.18(1).
One purpose of the ICRA is to "eliminate unfair and
discriminatory practices" in employment. Foods, Inc.
v. Iowa Civil Rights Comm'n, 318 N.W.2d
162, 170 (Iowa 1982). "An Iowa court faced with
competing legal interpretations of the [ICRA] must keep in
mind the legislative direction of broadly interpreting the
Act when choosing among plausible legal alternatives."
Pippen v. State, 854 N.W.2d 1, 28 (Iowa 2014).
appeal, Derby claims: (A) the district court erroneously
interpreted Iowa Code section 216.6(6)(a) by finding the
family-member exception does not apply to corporate
employers; (B) the district court should have dismissed
Cote's claims as untimely; (C) Cote's tort claims
were preempted by the ICRA; and (D) Cote did not allege
sufficient undisputed material facts to support the elements
of her tort claims.
contends the ICRC and the district court should not have
entertained Cote's claim of hostile work environment
because Iowa Code section 216.6, governing unfair employment
practices, does not apply to businesses having less than four
employees. This employee-numerosity requirement is
expressed in the statute as follows: "This section shall
not apply to . . . [a]ny employer who regularly employs less
than four individuals. For purposes of this subsection,
individuals who are members of the employer's family
shall not be counted as employees." Iowa Code §
216.6(6)(a); see also Simon Seeding & Sod, Inc. v.
Dubuque Human Rights Comm'n, 895 N.W.2d ...