Skip to main content

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

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more