Alleged Sexual Assault By Employee At a Conference Could Expose Employer to Liability

Doe v. Virgin America, Inc., et al. - United States District Court, Northern District of California

Facts:  Jane Doe ("Doe") worked as Vice President of Research Now, a global expert in online marketing research.  Doe's job responsibilities including "building and maintaining key strategic relationships with loyalty professionals, including airline representatives."  In October of 2016, Doe attended a conference in Toronto, Canada attended by professionals in the travel industry.  At the time, Stuart Dinnis ("Dinnis"), served as Virgin America, Inc.'s Director of Loyalty.  Dinnis also attended the conference in Tornoto.  Doe was informed that Dennis was an important person that she would need to meet with while at the conference.  

At a conference related party, Doe introduced herself to Dinnis.  Dennis, who was "noticeably drunk", later spilled a drink on Doe.  When Doe and her colleagues returned to their hotel, Dinnis was waiting in the lobby for her.  Doe claims that Dinnis followed her into an elevator and began to "aggressively kiss[] her and would not stop."  When the elevator stopped at Dinnis's floor, he tried to physically pull Doe from the elevator by her neck and hair.  After resisting, Dinnis got back into the elevator and followed Doe off the elevator and to her room.  Dinnis again grabbed Doe by the beck and tried to follow her into her room.  After fighting him off, Dinnis finally walked away, leaving Doe "shaking and terrified."  Dinnis later messaged her "Are you sure?  I have a suite if you're keen.  xx."  Upon receiving additional messages from him the next morning, Doe responded that "it's best if we keep things strictly professional."  Dinnis later messaged Doe and apologized for his behavior but also commented on her attractiveness.  

Doe claimed that since the assault by Dinnis, she has "experienced high anxiety while traveling, particularly in elevators."  Doe subsequently left her position with Research Now.

Doe proceeded to file a lawsuit against Virgin America, Inc. ("Virgin"), Alaska Air Group, Inc. ("Alaska"), and Dinnis on several grounds:  1) negligent supervision and retention against Virgin and Alaska; 2) intentional infliction of emotional distress against all defendants; 3) negligent infliction of emotional distress against all defendants; 4) assault, against all defendants; 5) battery, against all defendants; 6) violation of the Fair Employment and Housing Act ("FEHA") against Virgin and Alaska; 7) violatin of the Unruh Act against all defendants; 8) violation of the Bane Act against all defendants; and 9) violation of California Civil Code section 52.4 against Dinnis.  Doe brought claims two through eight against Virgin and Alaska under a respondeat superior theory of liability.  

The claims against Dinnis were severed.  Virgin and Alaska filed a motion to dismiss claims two through eight.  Doe conceded her sixth claim for relief for violation of FEHA.  That portion of the claim was dismissed with prejudice.

Holding:  (Note, this case brief only analyzes the Court's opinion as to the respondeat superior theory of liability).

For those unaware, under respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.  "In California, the scope of employment has been interpreted broadly", in regard to respondeat superior.   "[T]he test for determining whether an employee is acting outside the scope of employment is whether 'in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.'"  An employer may be vicariously liable for an employee's act if "the incident leading to injury [was] an 'outgrowth' of the employment" or if the risk of injury was "inherent in the working environment" or "typical of or broadly incidental to" the employer's business.

As for counts two, three, four, five, seven, and eight, Virgin and Alaska argued they cannot be vicariously liable for Dinnis's alleged assault because his acts were outside the scope of his employment, not an outgrowth of employment, not inherent in nor typical of employment, and not foreseeable.

As alleged by Doe, the Court found that Dinnis was acting within the scope of his employment at the time of the alleged assault.  Dinnis attended the conference in Toronto "in furtherance of, and for the benefit of, Virgin's business," and that Virgin expected him "to attend networking events and hold business meeting[s] with key partners of the loyalty program."  As Dinnis was at a conference and would likely be consuming alcohol, the Court found this to be something that Virgin would have been aware of (and likely encouraged).  Based upon Doe's position at Research Now and the fact that Dinnis was aware of her position (in regard to building and maintaining key strategic relationships in the airline industry), he would know that Doe would "be reluctant to react in a way that could harm her company's relationship with a major client like Virgin."  Consequently, Dinnis was in a position to take advantage of this imbalance of power between the two when he assaulted her.

Judgment:  The District Court denied the portion of Virgin and Alaska's motion to dismiss Jane Doe's respondeat superior theory of liability for the alleged assault by one of its employees on the ground that the employee was acting within the scope of his employment when he consumed alcohol at a business related conference and allegedly assaulted Jane Doe.

The Takeaway:  Given that we are in the Christmas season when many employers are likely to have office parties, this case should serve as a warning of sorts that conduct outside of the office can still give rise to liability for employers.  As this case shows, a conference occurring outside the "traditional" office setting could still give rise to liability for the employer.  Based upon the facts alleged by Doe, it appears that the employer was aware that Dinnis would be expected to closely interact with the company's clients at the conference.  Those presumed interactions would naturally lead to Dinnis exerting some level of power or control over the company's clients, given that the company's clients would likely be trying to keep Dinnis satisfied (and not lose the account).  As Dinnis had apparently attended conferences before (and would likely consume alcohol), I think the Court was correct to find that at this stage, there was sufficient evidence to allow Doe's respondeat superior theory of liability to proceed.  

Whether it will ultimately be found that Virgin and Alaska are liable for this alleged assault remains to be seen.  With that being said, employers should always be cognizant that even when an employee is "out of sight" and away from the office/workplace, that does not necessarily absolve an employer from liability for an employee's unlawful actions.

Majority Opinion Judge:  Judge Ryu

Date:  October 22, 2018

Opinion:  http://hr.cch.com/ELD/DoeVirgin102218.pdf