Alisha Munoz v. Adventure Lands of America, Inc.

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.
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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
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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
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“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
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(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.”).
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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 &
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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).
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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
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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.
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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
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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
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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
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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
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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.