Workers Compensation and Sexual Harassment

TORTS | WORKERS’ COMPENSATION
36-2-8576 Louis v. Burger King Corp .,

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark

Plaintiffs alleged she was sexually assaulted and harassed at her employer’s work place.  As a result, she filed a law suit in the Superior Court based on common-law claims based on theories of negligence and vicarious liability for injuries sustained when the wife was sexually assaulted by a co-worker. Specifically, they asserted claims for assault and battery, sexual harassment, intentional infliction of emotional distress, negligence and negligent hiring, tortious failure to intervene, and loss of consortium.

Factually:

In March 2009, Louis, represented by counsel, filed a workers’ compensation claim against QQR alleging work-place injuries at Burger King from the sexual assault. While that workers’ compensation action was pending, Louis and her husband filed this action in the Law Division, asserting claims against Salib, Burger King Corporation, QQR and Ghaitey.

The claims against employee Salib were settled and dismissed. On March 1, 2011, Louis settled the workers’ compensation claim for one-time payment of $7,500.00 section 20 settlement. In May 2013, following the completion of discovery, QQR and Ghaitey moved for summary judgment.

LEGAL ANAYLSIS:     Generally, when an employee’s claimed injuries fall within the coverage of the Act, the employee is barred from seeking further legal redress from an employer or co-employee. N.J.S.A. 34:15-8; Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449 (2012). The policy reasons for that exclusive remedy have been explained by our Supreme Court: “the New Jersey Workers’ Compensation Act accomplished a ‘historic trade-off whereby employees relinquish their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffer injuries by accident arising out of and in the course of employment.‘” Van Dunk, supra, 210 N.J. at 458 (quoting Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)). The Act’s exclusivity can be overcome if the case satisfies the statutory exception for an intentional wrong. N.J.S.A. 34:15-8 provides that

[i]f an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong. In a series of cases beginning with Millison, the Court has explained the intentional-wrong exception to the Act’s exclusive-remedy provision. Most recently, the Court has stated that “Millison remains the landmark case on the meaning of intentional wrong.” Van Dunk, supra, 210 N.J. at 461.     In Millison, the Court established a “substantial certainty” standard and a two-step analysis to evaluate if anintentional wrong can be shown. Millison, supra, 101 N.J. at 178. First, a court considers the “‘conduct prong’ examining the employer’s conduct in the setting of the particular case,” and second, a court analyzes the “context prong” considering the resulting injury. Van Dunk, supra, 210 N.J. at 461 (citing Millison, supra, 101 N.J. at 178-79). The Court has explained that for an employer to lose “the cloak of immunity” provided bythe Act:         (1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize. [Van Dunk, supra, 210 N.J. at 462 (quoting Laidlow v. Hariton Machinery Co., 170 N.J. 602, 617 (2002)).]

At oral argument before the trial court, counsel for plaintiff confirmed that the plaintiffs were not asserting a claim under any statute, including the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD). Moreover, plaintiffs’ complaint does not allege any violation of a federal or New Jersey employment or civil rights statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17.

Instead, plaintiffs’ claims against QQR and Ghaitey are based on theories of negligence and vicarious liability related to Salib’s alleged sexual assault on Louis. Viewing plaintiffs’ allegations in their most favorable light, at best, those allegations seek to assert common-law claims related to a work- place injury. Here, there is no dispute that Louis’ injuries were covered by the Act. Louis brought such a workers’ compensation claim, settled that claim, and received compensation for the very injuries she now seeks to assert in this action. The claims plaintiffs seek to assert, moreover, do not vault the exclusivity bar of the Act. There are no facts in the record that would satisfy the substantial certainty standard needed to prove an intentional wrong by QQR or Ghaitey.

Plaintiffs allege that QQR should be vicariously liable for the intentional actions of Salib. The record is undisputed, however, that there was no prior complaint about Salib, QQR had an employment policy prohibiting such conduct, and QQR acted consistently with that policy once Louis’ husband brought the allegations to QQR’s attention. Accordingly, QQR engaged in no conduct that could be shown to be an intentional wrong.

Plaintiffs allege that Ghaitey was negligent when he walked into the freezer, looked at Louis and Salib, took no action, and walked out of the freezer. Plaintiffs further allege that had Ghaitey acted, Salib would not have been able to assault Louis a second time. At her deposition, however, Louis acknowledged that she could not be sure that Ghaitey saw any part of the assault. She testified that Salib ceased assaulting her as soon as Ghaitey started to open the freezer door. Louis also acknowledged that she did not call out to or ask for help from Ghaitey. Finally, after Salib left her, Louis acknowledged that she did not report the assault to anyone, including Ghaitey. In his deposition, Ghaitey testified that he did not see Louis and

Salib when he walked into the freezer and he did not know that anything inappropriate was going on.

Viewing these allegations in the light most favorable to plaintiffs, at best, Ghaitey acted negligently; that is, he allegedly should have asked what was going on when he walked in to the freezer. That type of negligence, however, is not an intentional wrong under the Act. The Court has recently reaffirmed the principle that negligence is not an intentional wrong under the Act. In Van Dunk, the Supreme Court quoted Millison’s standard, which explained:         [T]he mere knowledge and appreciation of a         risk – – something short of substantial         certainty – – is not intent. The defendant         who acts in the belief or consciousness that         the act is causing an appreciable risk of         harm to another may be negligent, and if the         risk is great the conduct may be         characterized as reckless or wanton, but it         is not an intentional wrong.         [Van Dunk, supra, 210 N.J. at 460         (alteration in original)(quoting Millison,         supra, 101 N.J. at 177).]     Plaintiffs argue that the actions or inactions of QQR and Ghaitey are intentional wrongs within the meaning of the Act.In support of that position, plaintiffs cite and rely on the case of Cremen v. Harrah’s Marina Hotel Casino, 680 F. Supp.150 (D.N.J. 1988). The facts of Cremen, however, are distinguishable from the facts in this case. In Cremen, the employee lodged a verbal complaint against a supervisor employee who sexually assaulted her. Id. at 152. She was assured by a Harrah’s employee in charge of investigating such allegations that the supervisor would be promptly dealt with. Ibid.

Harrah’s failed, however, to address the matter and the harassment continued. Ibid. When Harrah’s moved for summary judgment arguing that the Act barred the employee’s common-law claims, the district court denied summary judgment because Harrah’s was put on notice and failed to take action. Ibid. As already pointed out, there are no facts showing that QQR or Ghaitey had any prior notice of Salib’s intentional actions, and when the complaint was brought to QQR’s attention, prompt action was taken and no further harassment occurred.

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