Virginia Lawyers Weekly VA Lawyers Weekly
A teenage cashier can sue defendant Kroger for sexual harassment based on its alleged failure to respond to her persistent complaints about a coworker who made sexual comments and touched her, and for retaliation, for work assignments she received after her complaints and the general manager’s chest-bumping and termination of her after she complained about being assigned late-night parking lot duty; plaintiff’s state law assault and battery claim against the alleged harasser will go forward, but the Roanoke U.S. District Court says that under the Virginia Workers’ Compensation Act, plaintiff’s assault and battery claim against the general manager arose from her employment.
The court dismisses plaintiff’s claim for negligent supervision, as Virginia law does not recognize this as a viable cause of action. The vast majority of courts have interpreted C&P Telephone Co. of Va. v. Dowdy, 365 S.E.2d 751 (Va. 1988), as foreclosing any cause of action for negligent supervision in Virginia.
The court rejects plaintiff’s contention that her claim should survive because it is premised in part on defendants’ negligent hiring and retention of the alleged harasser and the general manager. Virginia law recognizes the independent torts of negligent hiring and negligent retention. However, defendants argue the claim fails because plaintiff does not allege she suffered any physical injury as a result of defendants’ purported negligence. The court agrees and dismisses count I.
The court dismisses plaintiff’s Title VII sexual harassment claim against the general manager, as individual supervisors such as the general manager cannot be held liable for Title VII violations. The court denies dismissal of this claim against Kroger.
The court denies employer’s motion to dismiss plaintiff’s retaliation claim. It is undisputed plaintiff did not complain of retaliation in her EEOC charge. When a plaintiff has been retaliated against for filing an EEOC charge, she may raise the retaliation claim for the first time in federal court. She need not file a second charge before bringing her retaliation claim in federal court.
In count IV, plaintiff asserts a state law assault and battery claim premised on two alleged assaults. Plaintiff asserts that the general manager and Kroger are both liable under the doctrine of respondeat superior for the coworker’s Sept. 18, 2012 assault in which he repeatedly caused his body to come into contact with plaintiff’s in a sexual manner, intended to create or simulate sexual contacts or acts. Plaintiff also asserts the general manager is personally liable and Kroger is liable under the doctrine of respondeat superior for the general manager’s March 30, 2013, assault, in which the general manager bumped plaintiff’s chest repeatedly and yelled at her after she complained about being assigned late night parking lot duty.
The general manager’s purported assault clearly arose from plaintiff’s employment as a Kroger cashier. He allegedly told plaintiff the situation with the alleged harasser “is over” and “you don’t work for your parents, you work for me and if someone tells you what to do you will do it or you will lose your job!” These statements, along with the timing of the assault, demonstrate that the general manager’s actions were motivated by what he perceived as plaintiff’s defiant behavior as an employee. Nothing in the complaint suggests the manager’s actions were motivated by his personal feelings or impulses toward plaintiff. Any injuries suffered by plaintiff as a result of the alleged assault thus arise out of her employment. Regardless of what may have motivated the alleged harasser’s earlier assaults, the complaint clearly demonstrates that the general manager’s assault was motivated by his frustration with plaintiff’s job performance. Any injury resulting from his assault arose from her employment within the meaning of the Virginia Workers’ Compensation Act.
Count IV will proceed solely as a state law claim for assault and battery seeking to hold Kroger liable for the alleged harasser’s assault under the doctrine of respondeat superior.
Jones v. Kroger LP I (Conrad) No. 7:14cv401, Jan. 12, 2015; USDC at Roanoke Va. VLW 015-3-024, 18 pp.
