When an employee sustains physical or emotional harm caused by a coworker, legal issues can arise concerning an employer’s liability for the conduct of a coworker. In Brantley v., American Airlines, E. D. PA. no. 16-3540 (Pratter, J.) (November 21, 2016), the court held that when an employer has notice of certain past conduct by a coworker, an employer may be found liable for negligent hiring or negligent supervision.
In Brantley, the employee, an airport customer service agent, filed a Complaint alleging that the employer was legally responsible for misconduct of a coworker who was hired with a criminal record that included charges of stalking and harassing a woman. The employee filed claims against the employer alleging negligent hiring and supervision; and assault and battery on the legal theory of respondent superior (employer is responsible for the actions of an employee that it supervises). The employer filed a Motion to Dismiss all claims.
The employee alleged that the coworker sexually assaulted another employee in the airport employee parking lot but was not terminated or disciplined. Not knowing about the prior incident or record, the employee invited the coworker to her home where he sexually assaulted her. Thereafter, the employee contacted the police and informed the employer’s Human Resources department about the incident. The coworker was criminally charged for assault and the employee obtained a Protection from Abuse Order (PFA), prohibiting the coworker from having any interaction with her at work and the employee gave a copy of the Order to the employer. Thereafter, the coworker changed his shift to be assigned to employee’s terminal at the airport for a shift partially overlapping employee ’s shift. Then the coworker sexually assaulted another employee and shortly thereafter, the coworker followed the employee, approached her from behind as she applied lipstick in a common area for employees, stared at her, and whistled at her, despite having “no legitimate reason” to be in the area. According to the employee, these incidents caused her fear and emotional distress, she reported the last incident to airport police, who told her that the employer had never forwarded the PFA order or criminal docket to corporate security, in violation of the employer’s policy. Shortly thereafter, the coworker’s employment was terminated.
To state a claim for negligent supervision or negligent hiring under Pennsylvania law, an employee must allege that the employer failed to exercise ordinary care to prevent intentional harm to a third-party which is committed on the employer’s premises by an employee acting outside the scope of his employment and is reasonably foreseeable. In Brantley, the Court found that there were sufficient facts plead for the employee to bring a negligent supervision / hiring claim because while certain harm took place at the employee’s home, there was also evidence that the coworker engaged in stalking behavior during work hours. In so doing, the court rejected the employer’s argument that the coworker’s mere presence in the same terminal was not cognizable “harm,” as the existence of the PFA order and the coworker’s whistling, staring, and refusal to leave the employee alone is more than mere presence.
The employer also argued that the employee did not allege that the coworker acted outside the scope of his employment. However, the court pointed to Pennsylvania cases allowing negligent supervision claims to survive a motion to dismiss as an alternative claim to direct/respondeat superior liability and held that because, at the pleading stage, some leeway is permitted, the Court would not dismiss the negligent supervision claim simply because the employee also attempted to plead a respondeat superior claim. The court also noted that the employee reported the coworker’s bad behavior to the employer, presented it with her PFA order, and evidence that the coworker assaulted and/or stalked other female employees which placed the employer on notice of the coworker’s behavior, yet the employer continued to allow the coworker to work a period until after two more incidents when it then terminated the coworker.
In Brantley, the court dismissed the assault and battery claim wihtout prejudice. In so doing, the court held that while an employer may be held responsible for the acts of employees which cause injury to a third-party under a respondeat superior theory if the acts were committed during and within the scope of employment, apart from the fact that the actions occurred at work, the employee did not affirmatively plead any facts that would support that the coworker’s actions were of a kind and nature that he was employed to perform or for a purpose that served the employer’s interest.
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