*1 lenity rule and declare apply our will Court sentence, split be a classical sentence to court’s resen-
thereby limiting the district simple task for
tencing powers. statutory au- to set out what
district sentencing a defen-
thority relying on it is Furthermore, sentencing court if the
dant. split sen- probationary impose
wants to
tence, it intends to retain state that it should completely authority to resentence probation is in the event that his
defendant
revoked. resentencing and remanded for
Reversed opinion. with this
in accordance formerly KANZLER, known as H.
Sharon (Plaintiff), Ball, Appellant H.
Sharon (Defendant). RENNER, Appellee
David
No. 96-60. Wyoming.
Supreme Court of *2 Villemez, Cheyenne,
Jane A. Appellant (plaintiff).
Terry Armitage, Cheyenne, Appel- L. (defendant). lee TAYLOR, C.J., THOMAS, Before MACY, LEHMAN, GOLDEN and JJ. LEHMAN, Justice. Kanzler,
Appellant Sharon a former dis- patcher Cheyenne Depart- with the Police ment, appeals which was appellee, police entered favor of Renner, officer David on Kanzler’s claim of intentional infliction of emotional distress. We reverse.
Appellant Kanzler states two issues: the next Kanzler arrived work qualified im- When the defense 1. Whether dispatcher night, she found a note from a officer from munity police shields logged speeding. stating Renner had outrageous conduct outside suit for scope of his duties. days, the next few Kanzler noticed Within attack, physical evidence 2. Whether squad parked car down the street Renner’s *3 emo- and severe persistent harassment from from her house when she arrived home requires a decision injury tional got a.m. she shortly work after 4:00 When infliction of intentional a claim for on car, sped toward her. of her Renner out distress. emotional and again hurried into the house Kanzler in this presents stopped the issues Appellee Renner behind her. Renner locked the door way: in front of her house as for several seconds window, sped Renner, peered out the and then she defendant appellee David
I. Was below, summary judgment off. to entitled law, con- in as a matter his favor incident, Kanzler claims Following this action for inten- cerning the cause of coming the radio that Renner started into distress? of emotional tional infliction frequently she worked more room where Renner, defen- appellee David
II. Was
past.
that he
than he had
the
She states
below,
summary judg-
to
dant
entitled
and
at her for
would sit close to her
stare
law,
a matter of
favor as
ment
his
attempt-
long periods of time while she was
affirmative defense
upon
based
the
job.
dispatch
ing to do her radio
immunity?
asked her
Kanzler also claims that Renner
they
going
go
to
to Fort Collins
were
FACTS
two-step.
him to
so that she could teach
by
City of
employed
Kanzler was
acknowledges that she and defen-
Kanzler
July
Department from
Cheyenne Police
gone to Fort Collins
dant Renner had
police
as a
through August
that she advised Renner
past, but she states
employment with
During her
dispatcher.
going
go to Fort Col-
they
were not
to
developed a
Department, Kanzler
the Police
to
again and that she did not want
teach
lins
Renner,
police officer also
friendship
with
night, Kanzler
two-step.
him
Later that
to
Depart-
by
Cheyenne Police
employed
her,
approached
grabbed
that Renner
claims
beginning in mid-
Kanzler claims
ment.
his,
her,
body up
pulled
next
her
continuing
period of
for a
March
told him to leave
dance. She
started
slow
weeks, Renner’s conduct
approximately six
away.
pushed him
her alone and
changed
engaged
he
be-
her
toward
occasion,
put his arm
one
Renner
On
and unwel-
that was both offensive
havior
talking with
while she was
around Kanzler
come.
him. She
pulled
her to
another officer
in behavior
identified deviation
The first
“don’t,”
away,
and left
said
knocked his arm
4:00 a.m. one
approximately
at
occurred
occasion, she walked
another
the room. On
Kanzler was
morning in mid-March when
boyfriend, Officer
door to tell her
to the back
According Kan-
driving home from work.
Ball,
squad
and Renner’s
Greg
goodnight,
home, a car
zler,
as she drove toward
car. As she
parked behind her
car was
high
at a
rate
approached her from behind
building,
Renner
go
back into
turned
stopped when she realized
speed. Kanzler
question to
he had a
to Kanzler that
called
squad car.
being
that she was
followed
you
responded ‘What
ask her. Kanzler
her,
that it was
passed
she noticed
As the car
I’m involved with
trying
You know
to do?
pulled into her
by Renner. When she
driven
said,
else,”
somebody
point
Renner
which
car and
driveway,
drove around her
Renner
life,”
sped
off.
“Have a nice
By
house.
stop
to a
in front of her
squealed
at-
claims that Renner
Finally, Kanzler
time,
run to her front door
she had
dispatch
Babe,
utility closet
her,
her in a
“Hey,
come
tacked
Renner called out to
Kanzler,
1,1991. According to
on
re-
room
frightened and she
here.” Kanzler was
closet and
into the
Renner
followed
locking
inside the house.
sponded by
herself
light
pulled
public
shut behind him. The
policy.
the door
violation
state
Kanzler also
grabbed
was not on. Renner
Kanzler and
against
asserted
claim
Renner for inten-
pushed
pulled
away
her to him.
from
She
tional infliction of emotional distress based
him
open.
the door flew
Renner “took a
underlying
on
same facts
her sexual
pulled
the door shut. Kanzler
stance”
claim.
grant-
harassment
The district court
very
angry
was
states that she
seared and
ed
in favor of Renner on
attempted
help
to call for
and that she
both the Title VII claim and the state tort
portable radio that was inside the closet. As
City Cheyenne,
claim. Ball v.
radio,
she
for the
reached
tried
(D.Wyo.1993).
proceed-
her,
grab
away
managed
and she
against
ed to trial
on her Title VII
co-worker,
escape
closet.
Kanzler’s
claim
based
hostile environment sexual
Pexton,
approximately eight
was
feet
Sue
trial,
harassment. After
bench
the court
*4
away
closet. Pexton has
from the
stated
judgment
City
entered
in favor of the
on
that
saw
Kanzler
she
Renner follow
into the May 18, 1994. The court concluded that
a
on
closet and that she heard
click
the radio
by
Kanzler failed
preponder-
to establish
a
and
a commotion
the closet.
not
She does
proof
ance of the
of
evidence the elements
actually
know what
occurred inside the clos- necessary
claim,
to her
and that even if she
et,
visibly
but she
that Kanzler was
noted
had,
against
City
her case
the
would fail
upset
dispatch
when she returned to her
City
because the
promptly
ap-
reacted
and
console. Kanzler asserts that
later
that
propriately
allegations
to
reported.
her
once
night,
approached
Renner
her console where
appealed
grant
summary
Kanzler
the
of
sitting with
propped up,
she was
her feet
judgment
in favor of Renner to the Tenth
wrong,
asked her what was
and
his
rubbed
Renner,
Appeals.
Circuit Court of
Ball v.
54
leg.
crotch against her
(10th Cir.1995).
F.3d 664
upheld
The court
sufficiently upset by
Kanzler was
the
grant
the
of
on the Title
evening
events
she was unable to
VII claim because Renner exercised no su-
complete
reported
her shift. She
the inci-
pervisory/managerial authority over Kanzler
involving
to
dents
Renner
Chief Patterson
hence could
be considered Kanzler’s
morning,
and Lieutenant Powell the next
“employer” so
liability
as to incur
under Title
agreed
it was
that she should take the next
respect
VII. Id. at 668. With
to the inten-
days
four
off. Kanzler
to
returned work her
claim,
tional infliction of emotional distress
6,
l'egularly
on May
scheduled shift
but she
the
recognized
evolving
Tenth Circuit
the
again
emotionally distraught
became too
to
tort,
nature of the
the.fact
that it is a state
shift,
finish
fearful
that she would come
action,
law cause
and that
the district
with
began
contact
Renner. Kanzler
to
court did not have the
the
benefit of
later-
counselor,
a
diagnosed
see
and was
as suffer-
Wyoming Supreme
decided
Court case of
ing
depression
post-traumatic
Cody Country
Wilder v.
Chamber
Com-
stress disorder as a
result
the incidents at
merce,
(Wyo.1994),
work. Kanzler
up
used
all
sick
ruled on Kanzler’s claim. Consequently, the
leave,
vacation
took
then
leave without
summary
judgment
reversed the
on the
pay.
resigned
police depart-
She
claim for intentional infliction of emotional
14, 1991,
August
ment on
having
never
re-
distress, ordering dismissal of the claim
turned work.
prejudice
“without
to its
reassertion before
February 19,1993,
On
Kanzler filed suit
Ball,
state tribunal.”
DISCUSSION
existed.
A
Inñiction
of Emotional
Intentional
§
supra,
Restatement,
h, j.
46 cmts.
Distress
is
as
Outrageous conduct
defined
con
contends that Renner’s ac
“beyond
possible
goes
all
bounds
duct which
of emo
tions constituted intentional infliction
“regarded
decency,”
which is
as atro
of
Wyoming,
In
tional distress.
we have
cious,
utterly
in a civilized
intolerable
adopted of the
Restatement formulation
§
community.”
supra,
Restatement,
of
tort of intentional infliction
emotional dis
In
and Wilder we
emt. d.
both Leithead
tress:
in the em
recognized that certain conduct
Causing
§
Outrageous Conduct
Se-
of
ployment
context
rise to the level
Emotional Distress
vere
necessary
provide
to
outrageousness
basis
(1)
who
extreme and
One
recovery
inflic
for the tort
intentional
intentionally
recklessly
or
causes
conduct
Leithead, 721
tion of emotional distress.
emotional distress
another
is
severe
Wilder,
1066;
at 223-24.
P.2d
liability
subject to
for such emotional dis-
whether the
Our first task is
determine
tress,
bodily
and if
harm to the other
it occurs in
pattern
alleged,
behavior
it,
bodily
from for such
harm.
results
outrageousness
workplace,
satisfies the
Co.,
Leithead American Colloid
element of the tort.
(Wyo.1986)
(quoting
Restate-
46(1) (1965)).
jur
in accord with numerous
ment, Second,
To
We are
ToRTS
inap
have
that
which
determined
infliction of emotional
isdictions
recover
intentional
workplace
distress,
prove
propriate
sexual conduct
must
de-
evidence,
rise
can,
give
upon sufficient
fendant’s conduct was extreme and outra-
of emotional
intentionally
infliction
geous
claim of intentional
and that the defendant
decision,
Branch,
reaching
ety);
this
distress.2 In
we find
DeShiro v.
No. 96-800-CIV-
(M.D.Fla.
T-17E,
pronouncement
persuasive this
1343 munications, (Utah (1995). 949, 247, 978 L. 253 Never- & Tex. J. Women 1992). theless, several recur- able to discern we are to assist that courts have used ring factors Viewing light the evidence particular con- of whether the determination Kanzler, we that at most favorable to find sufficiently outra- workplace is duct in the factors set out above are least two preliminary motion. geous to survive First, alleges present. repeated she inci power. Restatement, period 1. Abuse of dents over a of several weeks which Sec (“ex her, her, supra, ond, ToRTS, 46 cmt. e followed Renner stared sub jected sexually-motivated character of her to advances treme behavior, intimidating each physically arise from an abuse es conduct Second, calating intensity severity. position, or a relation actor of a unwelcome, other, alleges non-negligible physi gives him she which actual with the other, cal contact wherein Renner touched and authority apparent over the or interests.”); hugged repeatedly her even after she re power to affect his advances, ultimately buffed his confined Bryant Better Business Bureau against in a and rubbed his crotch Md., Inc., 720, closet 747 F.Supp. Greater leg. alleged Kanzler has conditions and (D.Md.1996); P Crump v. & C Food beyond circumstances mere in which Markets, Inc., 284, A.2d 154 Vt. sults, indignities petty oppressions (Vt.1990). 441, 448 which, proved, if as outra could be construed Repeated incidents/pattern least, very persons geous. At the reasonable Wenk, Boyle v. harassment. could differ their conclusions to whether N.E.2d Mass. Renner’s conduct was extreme and outra (Mass.1979) (“Repeated harassment geous. Consequently, it is for a * * * outrageous- may compound the Renner’s conduct was determine whether which, of incidents taken individu- ness sufficiently outrageous to result in sufficiently ally, might not be extreme liability”); warrant Howard v. Town next turn to the second element We Jonesville, tort, Kanzler has suffered Best, (W.D.La.1996); Howard Univ. v. severe emotional distress. Emotional dis (D.C.App.1984). 484 A.2d unpleasant highly includes “all mental tress horror, reactions, fright, grief, such as touching/offensive, non- 3. Unwelcome embarrassment, shame, humiliation, anger, *7 negligible physical Bryant contact. worry, chagrin, disappointment, and nausea.” Business Bureau v. Better Greater j. supra, 46 cmt. The Re Restatement, (D.Md. Md., Inc., 720, F.Supp. 923 747 dis requires that the emotional statement 1996) (“there something is fundamen that no reasonable man tress be “so severe involves tally different about conduct which * * , expected it.” Id. could be to endure touching fe * areas generally anatomy which are male frightened Kanzler testified that she was anyone other considered off-limits to and anxious after the closet incident. She partner than a consensual sexual or shortly presented after evidence Hogan Forsyth v. physician”); Coun Bartlett, time, Carolyn a li- she consulted Co., 483, N.C.App. 340 try Club 79 worker, diagnosed social who censed clinical 116,120 (N.C.App.1986). S.E.2d post-traumat- began treating Kanzler for time, Kan- refusing reporting At the same for or ic stress disorder. 4. Retaliation Herber, sexually-motivated family practitioner, Michael advances. zler’s Shaf M.D., began treating diagnosed and her Corp., v. National 565 Can fer (E.D.Pa.1983) (situation 909, anxiety depression to the incidents due 916 where Cheyenne requested an The person’s of a em at work. the future success Leonard Me- independent evaluation from ployment depends performance on the doff, Ph.D., con- beyond psychologist, a forensic who goes far of sexual favors triggered a incident demeaning re firmed that the closet ambit of insults or marks); post-traumatic disorder. Kanzler tes- AT T stress v. & Com Retherford 1344 1) problems. acting continues to have state law: was
tified that she officer within the by Kanzler, 2) presented duties; consist- scope evidence of his her The or the officer was testimony including 3) ing faith; acting good her own the officer’s acts were opinions experts, of three diagnoses 4) is circumstances; reasonable under the on sufficient to create a issue the severi- discretionary the officer’s acts were duties ty her emotional distress. merely operational not or ministerial 572, (Wyo.1996). 910 duties. P.2d presented hold that Kanzler has suffi- We thing say qualified immunity “It is one is claim support cient evidence to her that Ren- * * * peace quite available to officers it is intentionally recklessly subjected ner or another determine whether officers conduct which caused se- particular qualified case are im- entitled to Additionally, vere emotional harm. we find Darrar, munity.” at 577. Renner is entitled presents genuine case issues of material this summary judgment on quali- basis way fact about Renner acted in the only immunity fied if he establishes that alleges. questions, Such which re- duties, acting scope while his within the he parties, credibility volve around the performed discretionary his duties reason- fact, properly the trier of resolved ably good faith. Therefore, summary judgment the court. is reversed. preliminary inquiry
The
acting
scope
whether Renner was
within the
Qualified Immunity
B.
of his duties. When an official acts outside
Kanzler contends that
district
scope
authority,
of his
he acts individual
granting summary judgment
erred
ly
and,
not in
capacity
his official
there
in favor of Renner
qualified
on the basis of
fore, he
protection
cannot claim the
quali
immunity.
law, police
Under the common
State,
immunity. Oyler
1042,
fied
v.
granted
officers have never been
absolute
(Wyo.1980).
1047
fact
an
official
immunity
Rupe,
their actions.
Blake v.
duty
was at work
does not in itself
1096,
(Wyo.1982),
1107
cert. denied
acting
establish that he was
within his au
1208, 103
1199,
459 U.S.
S.Ct.
442
L.Ed.2d
thority.
Jung-Leonczynska
Steup,
See
v.
(1983)
(citing
Ray,
v.
Pierson
U.S.
(Wyo.1989).
S.Ct.
L.Ed.2d 288
(1967)). Rather, police
only
enjoy
officers
materials,
In
his
immunity
limited
tort
DeWald
his
qualified
Renner bases
entitlement
State,
(Wyo.1986).
P.2d
immunity
standard,
stating
the federal
good
that he acted in
faith at all times and
The standard of
immu
clearly
violated no
established law. Howev
nity
under our
established
common law is
er,
recognize
fails
that whether a
distinct from the federal standard.4 In Dar-
Bourke,
public
rar v.
officer
we reviewed
acted within his or her authori
the factors which
*8
peace
qualified
ty
would
inquiry
entitle
officer to
im
is a threshold
under either the
munity
pursuant
from a tort
brought
suit
qualified immunity
common law
test or the
argues
quali
apply
leged
4. Renner
that we should
violation of Fourteenth Amendment due
immunily
Amendment);
process
fied
test
Dewey,
established in Harlow v.
and First
Abell v.
Fitz
800, 818,
gerald, 457 U.S.
(Wyo.1994) (alleged
S.Ct.
870 P.2d
violation
(1982):
1983). However,
m the in the first of conduct that is' sMelded type not the may reasonably be the defendant’s conduct qualified liability under the doctrine outrageous regarded as so extreme and us, find immumty. record before we On the it permit or whether is neces- recovery, district court’s determination no basis for the sarily men dif- so. Where reasonable immum- was entitled that Renner fer, jury, subject to control it is for the Darrar, result, we reverse. ty; as a court, whether, in the to determine P.2d at 577. case, has suffi- particular the conduct been ciently outrageous to result in extreme and
CONCLUSION law, that, as a matter of We hold (SECOND) OF TORTS RESTATEMENT support in evidence presented sufficient (1965). § 46 cmt. h intentional infliction of emotional her claim of my hope that trial bench and the distress, inappropriate sexual con- based on Wyoming will not read into tMs deci- bar workplace, to co-employee in the duct every arbitrary rule that case sion an summary judg- motion for survive Renner’s involving reasonable men sexual misconduct Further, not hold that Renner has ment. we the conduct is so can differ as to whether qualified immumty. shown he is entitled justify as to recov- extreme genurne Finally, presents tMs case issues intends, ery. I not the Court so do believe acted fact about whether Renner material mistaken, if I am such a rule would be but alleges. questions way Kanzler These my view. erroneous by summary appropriately are not resolved Therefore, or- judgment. the district court’s the ease is remanded for
der is reversed and opin- proceedings consistent with tMs
further
ion. Compensa Matter of the Worker’s In the Justice, THOMAS, concurring specially. FRITZ, an Em tion Claim of Charles case, the result of tMs I am accord with ployee of Parcel Service. United that in addition to appears it to me
because
emphasized m the ma-
misconduct
the sexual
(Claimant),
FRITZ, Appellant
Charles
essentially was stalk-
jority opimon, Renner
however,
concern,
ing
I have a
Kanzler.
Wyoming,
rel.,
ex
WYOMING
STATE
in a
developing
law in tMs area is
our
AND COMPEN
WORKERS’ SAFETY
manner, noting that two
particularly cohesive
DIVISION; and
Parcel
United
SATION
dissented in Garcia v.
members of the Court
(Respondents).
Service, Appellees
Lawson,
(Wyo.1996). This is
infliction of emotional
conduct, summary judg- grant a decision Harlow, 457 U.S. at immunity official acts. scope based on Meir was Ae issue in Harlow added). (emphasis damages 102 S.Ct. at public a suit for officials in available