Kanzler v. Renner

• Decision Date: 23 May 1997
• Docket Number: No. 96-60,96-60
• Citation: 937 P.2d 1337
• Parties: 71 Empl. Prac. Dec. P 44,830, 12 IER Cases 1700 Sharon H. KANZLER, formerly known as Sharon H. Ball, Appellant (Plaintiff), v. David RENNER, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1337

937 P.2d 1337

71 Empl. Prac. Dec. P 44,830, 12 IER Cases 1700

Sharon H. KANZLER, formerly known as Sharon H. Ball, Appellant (Plaintiff), v. David RENNER, Appellee (Defendant).

No. 96-60.

Supreme Court of Wyoming.

May 23, 1997.

Jane A. Villemez, Cheyenne, for Appellant (plaintiff).

Terry L. Armitage, Cheyenne, for Appellee (defendant).

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

LEHMAN, Justice.

Appellant Sharon Kanzler, a former dispatcher with the Cheyenne Police Department, appeals from the summary judgment which was entered in favor of appellee, police officer David Renner, on Kanzler's claim of intentional infliction of emotional distress.

We reverse.

Appellant Kanzler states two issues:

1. Whether the defense of qualified immunity shields a police officer from suit for outrageous conduct outside the scope of his duties.

2. Whether evidence of physical attack, persistent harassment and severe emotional injury requires a jury decision on a claim for intentional infliction of emotional distress.

Appellee Renner presents the issues in this way:

I. Was appellee David Renner, defendant below, entitled to summary judgment in his favor as a matter of law, concerning the cause of action for intentional infliction of emotional distress?

II. Was appellee David Renner, defendant below, entitled to summary judgment in his favor as a matter of law, based upon the affirmative defense of qualified immunity?

FACTS

Kanzler was employed by the City of Cheyenne Police Department from July 12, 1982, through August 14, 1991, as a police dispatcher. During her employment with the Police Department, Kanzler developed a friendship with Renner, a police officer also employed by the Cheyenne Police Department. Kanzler claims that beginning in mid-March of 1991, and continuing for a period of approximately six weeks, Renner's conduct toward her changed and he engaged in behavior that was both offensive and unwelcome.

The first identified deviation in behavior occurred at approximately 4:00 a.m. one morning in mid-March when Kanzler was driving home from work. According to Kanzler, as she drove toward her home, a car approached her from behind at a high rate of speed. Kanzler stopped when she realized that she was being followed by a squad car. As the car passed her, she noticed that it was driven by Renner. When she pulled into her driveway, Renner drove around her car and squealed to a stop in front of her house. By that time, she had run to her front door and Renner called out to her, "Hey, Babe, come here." Kanzler was frightened and she responded by locking herself inside the house. When Kanzler arrived at work the next night, she found a note from a dispatcher stating Renner had logged her speeding.

Within the next few days, Kanzler noticed Renner's squad car parked down the street from her house when she arrived home from work shortly after 4:00 a.m. When she got out of her car, Renner sped toward her. Kanzler again hurried into the house and locked the door behind her. Renner stopped for several seconds in front of her house as she peered out the window, and then sped off.

Following this incident, Kanzler claims that Renner started coming into the radio room where she worked more frequently than he had in the past. She states that he would sit close to her and stare at her for long periods of time while she was attempting to do her radio dispatch job.

Kanzler also claims that Renner asked her when they were going to go to Fort Collins so that she could teach him to two-step. Kanzler acknowledges that she and defendant Renner had gone to Fort Collins in the past, but she states that she advised Renner that they were not going to go to Fort Collins again and that she did not want to teach him to two-step. Later that night, Kanzler claims that Renner approached her, grabbed her, pulled her body up next to his, and started to slow dance. She told him to leave her alone and pushed him away.

On one occasion, Renner put his arm around Kanzler while she was talking with another officer and pulled her to him. She knocked his arm away, said "don't," and left the room. On another occasion, she walked to the back door to tell her boyfriend, Officer Greg Ball, goodnight, and Renner's squad car was parked behind her car. As she turned to go back into the building, Renner called to Kanzler that he had a question to ask her. Kanzler responded "What are you trying to do? You know I'm involved with somebody else," at which point Renner said, "Have a nice life," and sped off.

Finally, Kanzler claims that Renner attacked her in a utility closet in the dispatch room on May 1, 1991. According to Kanzler, Renner followed her into the closet and Kanzler was sufficiently upset by the events that evening that she was unable to complete her shift. She reported the incidents involving Renner to Chief Patterson and Lieutenant Powell the next morning, and it was agreed that she should take the next four days off. Kanzler returned to work her regularly scheduled shift on May 6, but she again became too emotionally distraught to finish her shift, fearful that she would come in contact with Renner. Kanzler began to see a counselor, and was diagnosed as suffering from depression and post-traumatic stress disorder as a result of the incidents at work. Kanzler used up all her sick and vacation leave, and then took leave without pay. She resigned from the police department on August 14, 1991, never having returned to work.

pulled the door shut behind him. The light was not on. Renner grabbed Kanzler and pulled her to him. She pushed away from him and the door flew open. Renner "took a stance" and pulled the door shut. Kanzler states that she was very scared and angry and that she attempted to call for help on a portable radio that was inside the closet. As she reached for the radio, Renner tried to grab it away from her, and she managed to escape from the closet. Kanzler's co-worker, Sue Pexton, was approximately eight feet away from the closet. Pexton has stated that she saw Renner follow Kanzler into the closet and that she heard a click on the radio and a commotion in the closet. She does not know what actually occurred inside the closet, but she noted that Kanzler was visibly upset when she returned to her dispatch console. Kanzler asserts that later that night, Renner approached her console where she was sitting with her feet propped up, asked her what was wrong, and rubbed his crotch against her leg.

On February 19, 1993, Kanzler filed suit in Federal District Court against Renner and the City of Cheyenne. She asserted claims of sexual harassment against both defendants under Title VII of the Civil Rights Act of 1964 (Title VII), ¹ and claims against the City alone for denial of equal protection and wrongful termination of her employment in violation of state public policy. Kanzler also asserted a claim against Renner for intentional infliction of emotional distress based on the same facts underlying her sexual harassment claim. The district court granted summary judgment in favor of Renner on both the Title VII claim and the state tort claim. Ball v. City of Cheyenne, 845 F.Supp. 803, 813-14 (D.Wyo.1993). Kanzler proceeded to trial against the City on her Title VII claim based on hostile environment sexual harassment. After a bench trial, the court entered judgment in favor of the City on May 18, 1994. The court concluded that Kanzler failed to establish by a preponderance of the evidence the elements of proof necessary to her claim, and that even if she had, her case against the City would fail because the City reacted promptly and appropriately to her allegations once reported.

Kanzler appealed the grant of summary judgment in favor of Renner to the Tenth Circuit Court of Appeals. Ball v. Renner, 54 F.3d 664 (10th Cir.1995). The court upheld the grant of summary judgment on the Title VII claim because Renner exercised no supervisory/managerial authority over Kanzler and hence could not be considered Kanzler's "employer" so as to incur liability under Title VII. Id. at 668. With respect to the intentional infliction of emotional distress claim, the Tenth Circuit recognized the evolving nature of the tort, the fact that it is a state law cause of action, and that the district court did not have the benefit of the later-decided Wyoming Supreme Court case of Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211 (Wyo.1994), when it ruled on Kanzler's claim. Consequently, the court reversed the summary judgment on the claim for intentional infliction of emotional distress, ordering dismissal of the claim "without prejudice to its reassertion before a state tribunal." Ball, 54 F.3d at 665.

On August 22, 1995, Kanzler filed a claim of intentional infliction of emotional distress against Renner in state district court. The district court granted Renner's motion for summary judgment on January 10, 1996, on the grounds that 1) Renner was entitled to

qualified immunity, and 2) Renner's conduct was not sufficiently outrageous to present a jury question. Kanzler timely appeals the district court's order.

STANDARD OF REVIEW

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56; Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994). A material fact is one which if proven would establish or refute one of the essential elements of a cause of action or defense which has been asserted. Id. This court evaluates the propriety of summary judgment using the same standards and materials used by the district court, affording no deference to the district court's decisions on issues of law. Id. We look at the record from a viewpoint most favorable to the party opposing the motion, allowing that party all reasonable inferences which may be fairly drawn from the record. Id. Summary...