Posted on: April 19th, 2018

Oliver Fenceroy was employed at Gelita USA, Inc., where he began working in 1975.  In 2013, he left the company and filed an administrative complaint and ultimately a civil suit charging Gelita with race discrimination.  Fenceroy alleged that there were a number of workplace incidents involving racially disparaging comments by employees.

During Fenceroy’s employment, Gelita implemented an anti-harassment policy that barred disparate treatment in the workplace on the basis of race.  Fenceroy acknowledged receiving this written memorandum discussing the anti-harassment policy.  In addition, Fenceroy attended company trainings in 2011, 2012, and 2013 discussing workplace harassment.  He also received copies of Gelita’s Code of Conduct, which contained the company’s anti-harassment policy, in 2011 and 2012.  In 2012, Gelita conducted a survey requesting anonymous feedback about potential problems or changes to the company.  Fenceroy received this survey, but did not report any harassment.

In response to the complaint, Gelita hired an attorney to defend the company and investigate the merits of the charge.  Gelita filed an affirmative defense, relying in part on their distribution of valid discrimination policy and flexible reporting procedures.  Gelita further stated that after the most recent administrative filing, they investigated the complaint, the supervisor has since been fired for his actions, and others have been disciplined.  Following the administrative proceeding, Fenceroy was granted the right to sue.

Fenceroy filed a civil action in district court against Gelita and four named employees: Bob Kersbergen, Tom Haire, Jeff Tolsma, and Jeremie Kneip.  Fenceroy alleged the defendants engaged in racial harassment in violation of the Iowa Civil Rights Act and that he was constructively discharged.  He also alleged Kersbergen and Haire engaged in tortious infliction of severe emotional distress.  Gelita filed an answer with affirmative defenses, namely alleging that Fenceroy failed to take advantage of any preventative or corrective opportunities provided by Gelita.

The Iowa Supreme Court determined that when an employer relies on a pre-suit investigation to support an affirmative defense, that employer waives attorney-client privilege when the investigation is conducted by an attorney.  The Court determined that in order to adequately challenge this defense, a plaintiff is entitled to probe the nature and scope of the relied upon investigation and they may have access to the notes and communications between the investigator-attorney and the company.  The Court reasoned that if an employer does not want to waive this privilege, then they may decide to refrain from referencing the investigation in the civil action.

Fenceroy v. Gelita USA, Inc., No. 16-0775, 2018 WL 1021320 (Iowa Feb. 23, 2018)

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