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Fenceroy v. Gelita USA, Inc.

Court of Appeals of Iowa

November 6, 2019

OLIVER FENCEROY, Plaintiff-Appellant,
v.
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.

          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.

          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. 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. ...


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