Court Allows Employee’s Attempted Sexual Assault Claim against Employer to Proceed to Trial
The Dallas Court of Appeals has concluded that fact questions exist to allow an employee’s common law claim against her employer to proceed outside the protection of the exclusive remedy defense in the Workers’ Compensation Act. The decision in B.C. v. Steak N Shake Operations, Inc., 05-14-00649-CV follows the second time the Texas Supreme Court remanded the case to the court of appeals. The most recent opinion was decided August 3, 2020.
The case arises out of an alleged attempted sexual assault of a restaurant employee by her store manager and supervisor. The employee contended that her manager had attempted to sexually impose himself on her after the two found themselves smoking cigarettes in a restroom on store premises. The employee alleges that she succeeded in resisting the assault and left the restroom.
The employee contended that the employer was liable because the manager was a vice principal and the employer “steps into the shoes of the assailant” and becomes, therefore, directly liable for her injury. In a cross motion for summary judgment, the employer sought to affirmatively prove as a matter of law the manager was not a vice-principal and the employer, therefore, was not liable.
Stated more specifically, the employer argued the assault claim was an on the job injury and therefore precluded by the exclusive remedy of the Workers’ Compensation Act. The employee argued that she had been assaulted by her supervisor and that because he was a vice-principal of the corporation the employer was directly liable. She further argued that because her assault claim was directly against the employer, her claim is an exception to the exclusive remedy provision of the Workers’ Compensation Act. See Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996) (“Middleton and its progeny clearly remove from the [TWCA]’s coverage intentional torts attributable directly to an employer, such as where a partner of a partnership-employer personally assaults an employee.”)
The outcome of the case turns, therefore, on whether the manager was a “vice-principal” of the corporation. The court reviewed a number of job positions, functions and authority which other courts had found constitute a vice-principal. These included a manager with authority to employ, direct and discharge employees; a general manager, comptroller, and used car sales manager; a manager of a bar-restaurant; a person who writes checks and hires and fires employees; and a trucking terminal manager.
The court concluded that the manager was a vice-principal for purposes of the case.
[T]he evidence in the summary judgment record amounts to more than a scintilla of evidence that [the manager] had the authority to fire associates and participate in the hiring and promotion of associates as documented in [the employer’s] records for government labor law compliance. He was the sole manager onsite and while managing the restaurant, according to [the claimant] he assaulted her in the employee restroom. This is more than a scintilla of evidence that Ventura was a vice-principal of SNS.
The court held that this evidence entitled the employee to have a jury determine the factual issue of whether the manager was a vice-principal. Accordingly, it concluded the trial court erred in granting summary judgment on the basis that the manager was not a vice-principal and that the employee’s common law assault claim was a workers’ compensation claim. The case was remanded for trial on those issues.
FOLIO
